Editorial note: People with disabilities are not a monolith. Many disabled people prefer to use identity-first language in place of first-person language. This is because they view disability as being a core part of their identities, like race or gender. Others prefer person-first language. The ADA uses person-first language. This article uses both terms interchangeably.
The Americans with Disabilities Act (ADA) is turning 32 years old.
Signed into law in July of 1990, the hallmark civil rights law—which prohibits discrimination against individuals with disabilities in all areas of public life—helps people who have physical, mental health, and learning disabilities access the same employment opportunities and benefits available to everyone else.
One in four adults in the United States have some type of disability, and the numbers are only increasing, according to the World Health Organization. In fact, researchers estimate that COVID-19 and the insidious rise of long COVID cases have likely resulted in an additional 1.2 million more disabled people by the end of 2021. On top of that, ADA lawsuits are on the rise, reaching an all-time high in 2022.
It’s crucial for nonprofit employers to be well-versed in ADA compliance—both to ensure that their workplace practices are equitable and accessible for the one in four Americans with disabilities and to avoid lengthy and expensive lawsuits.
Here’s what employers need to know:
What types of employers does the ADA cover?
The ADA applies to employers with 15 or more employees. This includes private employers (nonprofit and for-profit organizations), state and local governments, employment agencies, and labor unions.
What are employer obligations under the ADA?
The ADA imposes two clear obligations on employers:
- Employers cannot discriminate against applicants or employees based on the existence of a disability. This applies to all aspects of employment, including job application procedures, hiring, firing, compensation, job training, advancement, and benefits.
- Employers must reasonably accommodate a disabled applicant or employee so long as it does not pose an “undue hardship” on the employer.
Who qualifies as disabled under the ADA?
A “qualified person with a disability” is a person who possesses the skills, experience, and education to fulfill the “essential functions” of a job with or without reasonable accommodation.
The boundaries of who qualifies as disabled are broad, and the law was written to allow for expansion. According to the ADA Amendments Act of 2008, covered employers should interpret the ADA broadly in order to “include as many disabilities as possible, and to protect as many people as possible.”
The ADA has a three-pronged definition of disability. A person is considered to be disabled if any of the following are true:
- They have a condition that either substantially limits one or more major life activities (like seeing, walking, communicating, sitting, and reading) or major bodily functions.
- They have a record or past history of such an impairment.
- The impact of the condition is not considered to be transitory (lasting less than six months) and “minor” in scope.
An important stipulation: when determining if a person is disabled, medical conditions are to be considered in their un-medicated or untreated status. For example, an employee with ADHD who controls their condition with medication would still be considered to be disabled under the ADA.
It’s not unusual for government agencies to publish new guidelines regarding the ADA.
Most recently, in April 2022, the Justice Department issued guidance on protections for people with opioid use disorder under the ADA. In July 2021, the Biden administration released guidance specifying that people experiencing long Covid could be considered disabled under civil rights law.
What are reasonable accommodations?
Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to have equal employment opportunities.
An equal employment opportunity means an opportunity to attain the same level of performance or to enjoy equal benefits and privileges of employment as are available to an average similarly-situated employee without a disability, according to the DOL.
Reasonable accommodations will vary depending upon the needs of individuals, and not all people with disabilities—or people with the same disability—will need the same accommodation.
The following instances, provided by the Equal Employment Opportunity Commission’s (EEOC’s) Fact Sheet on Disability Discrimination, are examples of reasonable accommodations:
- Making existing facilities used by employees readily accessible to and usable by people with disabilities.
- Job restructuring or modifying work schedules to make them more accessible for people with disabilities.
- Acquiring or modifying equipment or devices, training policies, and providing qualified readers or interpreters.
Specific scenarios may include:
- Providing regularly scheduled breaks to an employee with diabetes so that they may eat properly and manage their blood sugar levels.
- Providing a sign language interpreter to a deaf applicant during a job interview.
- Providing a parking space closer to the building for an employee who has limited mobility.
What is the process for creating reasonable accommodations?
When determining whether an effective and reasonable accommodation is available, an employer must engage in an interactive process with their employee. To put it simply, this means that the employee with a disability and their employer must work together to determine an appropriate and effective accommodation.
The Department of Labor’s Office of Disability Employment recommends employers develop formal policies and procedures for accommodating employees with disabilities. Creating these procedures can make it more likely for supervisors and managers to handle accommodation requests properly and simply, and sharing formal policies with employees helps them know what to expect if they request an accommodation. Formal procedures also help employers document their efforts to comply with the ADA.
The EEOC’s advice for drafting and implementing reasonable accommodation procedures can be found here.
What is an undue hardship?
An employer is not required to make an accommodation if it would impose an undue hardship on the operation of their business. However, determining if an undue hardship exists is not always straightforward.
“Undue hardship” is determined on a case-by-case basis and is defined as an “action requiring significant difficulty or expense” when considered against a number of factors. These factors include the nature and cost of accommodation in relation to the size, resources, nature, and structure of the employer’s operation.
That means that “in general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources,” according to the ADA National Network,
If a particular accommodation would be considered an undue hardship:
- The employer must try to identify another accommodation that will not pose a hardship.
- The individual with a disability should be given the option of paying that portion of the cost which would constitute an undue hardship for their employer.
Contact Job Accommodation Network (JAN) for free confidential technical assistance regarding job accommodations and most things ADA related at (800) 526-7234 or visit their website https://askjan.org.
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The information contained in this article is not a substitute for legal advice or counsel and has been pulled from multiple sources.