The ADA and the ADAAA

The ADA and ADAAA

If you have a disability, you are protected under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.  § 12101, et seq. (1990), and the Americans with Disabilities Amendments Act of 2008 (ADAAA). These acts protect disabled but otherwise “qualified individuals” from discrimination in the workplace (employers with 15 or more employees). The ADA requires employers to provide “reasonable accommodations” that allow employees with a disability to participate in the work environment. Employers are additionally prohibited from conducting or requiring medical tests or examinations prior to a conditional offer of employment; they are also forbidden to inquire about an applicant’s impairment unless it is related to the applicant’s ability to perform “essential job functions.”

What is a “disability?” Who are “qualified individuals?”

A “disability” 42 U.S.C. §12102(1)(A) is defined by the ADA as:

1. “a physical or mental impairment that substantially limits one or more of the major life activitiesof an individual”
   1. Substantially limits: is the individual in question more limited than members of the general population with regard to performance of a major life activity?
   2. Major life activities: bodily tasks that people typically perform daily, e.g. breathing, hearing, eating, walking, speaking/communicating, etc.
2. “having a record of such impairment”
3. “being regarded [or perceived] as having such an impairment” by your employer; i.e. your boss makes an adverse employment action (termination, demotion, etc.) because he/she believes or assumes that you have an impairment. Whether or not you actually have this impairment or disability is irrelevant.

• Chronic or permanent medical conditions do qualify (e.g. speech/hearing/vision impairments, HIV/AIDS, cancer, episodic migraines, diabetes, mental illness, mental retardation, etc.).
• Temporary medical conditions (the flu, a cold, appendicitis, concussions, broken bones, etc.) generally do not qualify as a disability.
• Cultural, economic, and/or personality characteristics (e.g. gambling, homosexuality, etc.) are not considered impairments by the ADA.
• A normal, healthy pregnancy is not considered to be an impairment or a disability.
• Alcoholism is considered a disability under the ADA. Current alcoholics as well as recovering patients are both protected under this Act.
• The ADA provides protection to former drug addicts; it does not protect workers or applicants who are currently using illegal substances. The ADA also allows for drug screening of job applicants.

The ADA defines a “qualified disabled person” as someone who falls into one of the three categories listed above but who can still perform “essential functions” of the position they have or desire to have, with or without “reasonable accommodation.” The individual must meet a requisite threshold in order to be qualified (posses proper “education, work experience, training, skills, licenses, certificates,” and other specific job requirements). If this threshold is met, then the “essential functions” of the job must be considered. These are any fundamental duties essential and necessary to a certain position; they are normally included in an employer’s written job description.

What are “reasonable accommodations?”

The purpose of this clause is to allow qualified disabled individuals the opportunity to participate in the workforce. This statute only applies to “actual disabilities,” (the first definition of “disability” given above). The employer (upon request) is responsible for providing the accommodation at his/her own expense provided that the accommodation does not create an “undue hardship” to the employer. The employer may determine undue hardship by weighing the costs (difficulty and expense) against the benefits of the accommodation in question. The employer may take into consideration his/her financial resources, the size of the company, etc.

Some examples of reasonable accommodation:

• Reducing or modifying work schedules; allowing accrued or unpaid leave for treatment/recovery; and
• Reassignment to a lateral position or exchanging tasks with coworkers.

Examples of non-reasonable accommodation that create undue hardship:

• Creating a brand new position for the individual in question;
• Lowering standards of quality or changing the manner in which a company conducts itself;
• Hiring an additional special assistant to assist the disabled person; and
• Providing special transportation to the workplace.

The issue of disabilities in the workplace can be complex; each case is unique and must be dealt with individually. If you feel you have been discriminated against or have received adverse treatment in the workplace due to a disability, you should file a claim with the Equal Employment Opportunity Commission or the South Carolina Human Affairs Commssion.