Other Federal and State Laws (internal links)

Federal laws

The Rehabilitation Act of 1973, as Amended

The Federal Rehabilitation Act (Rehab Act) was the most significant disability law before the ADA. In fact, the definition of a person with a disability is based on the definition in the Rehab Act. It continues to be the primary law to protect federal employees who work for the executive branch of government, and state and local government employers with fewer than 15 employees. Certain provisions of the law extend beyond the ADA and are still in effect.

Section 501 of the Rehab Act requires federal departments and agencies to practice affirmative action in the hiring, placement and promotion of people with disabilities.

Section 503 of the Rehab Act requires agencies, contractors and subcontractors (for projects exceeding $2,500) to take affirmative action in the employment of qualified individuals with disabilities. This means that employment cannot be denied because of an employee's disability. Furthermore, the contractor must take steps to recruit, hire, train and promote qualified workers with disabilities by taking affirmative action.

Section 504 of the Rehab Act prohibits discrimination against otherwise qualified individuals with disabilities in any program or activity that receives federal financial assistance solely because of their disability. Each federal department and agency issues its own regulations implementing Section 504. Many of these procedures are used under the ADA.

The Family and Medical Leave Act of 1993

The Family and Medical Leave Act (FMLA) does not modify or restrict rights under the ADA. Employers are instructed to comply with whichever statute provides the greater rights to employees.

The FMLA allows employees to take up to 12 weeks of unpaid, job-protected leave per year — with health benefits — for any of the following reasons: to care for a newborn or recently adopted child; to care for a foster child placed with the employee; to take time off work because of his or her own serious health condition; or to care for the employee's spouse, child or parent with a serious health condition. Employees who have worked for an employer with 50 or more employees for at least one year, and for a minimum of 1,250 hours during the 12-month period preceding the leave, are eligible to take such leave.

The challenge lies in interpreting the interaction between the FMLA and the ADA. The following are examples of compliance under both laws:

• If an employee becomes disabled, an employer might make a reasonable accommodation under the ADA by providing the employee with a part-time job with no health benefits. However, FMLA would permit an employee to work a reduced leave schedule until 12 weeks of leave is used up, with health benefits maintained during this period. At the end of the FMLA leave entitlement, the employee must be reinstated to the same or equivalent position. But if the employee were unable to perform the equivalent position because of a disability, the ADA may permit or require the employer to make reasonable accommodation by placing the employee in a part-time job, receiving only those benefits that other part-time employees receive.
  
  
• The ADA may require an employer to grant additional unpaid leave to a qualified person with a disability even though the employee exhausted his or her leave rights under the FMLA.
  
  
• If an employee is entitled to leave under the FMLA, an employer may not, in lieu of leave entitlement, require an employee to take a job with a reasonable accommodation. However, under the ADA, the employer may be required to offer the employee the opportunity to take such a position.
  
  
• If an employer requires certification of an employee's fitness for duty to return to work, as permitted by the FMLA, the employer must comply with the ADA's requirement that a fitness-for-duty physical examination be job-related.
  
  

When an employer violates both the FMLA and the ADA, an employee may be able to recover under either or both statutes.

Work Incentives Improvement Act (1999)

On Dec. 17, 1999, the Work Incentives Improvement Act was signed into law. Under previous legislation, individuals who were disabled often lost Medicaid and Medicare coverage when they returned to work. The increase in income placed the individual above the coverage threshold, but oftentimes the income earned was not enough to offset the costs of medical treatment or equipment that was needed. Thus, individuals had to choose between rejoining the workforce and losing their Medicare/Medicaid benefits, or remaining outside the workforce and retaining their benefits. The new legislation allows individuals to "buy into" Medicaid by paying premiums that would be established by the individual states.

Civil Rights Act of 1991

The Civil Rights Act of 1991 is crucial to people with disabilities because the ADA and the Rehab Act state that "the powers, remedies, and procedures" of the Civil Rights Act are to be used by "the Equal Employment Opportunity Commission, by the Attorney General, or by any person alleging discrimination on the basis of disability ... concerning employment." The 1991 Civil Rights Act amended the 1964 Act and overturned several 1989 Supreme Court decisions that eroded the rights of people who were discriminated against. The law allows people with disabilities who feel they have been discriminated against to request a jury trial, and in the private sector, to receive punitive damages. The Civil Rights Act of 1991 also provides that the criteria used by employers for hiring decisions, such as educational requirements, must be "job related and consistent with business necessity."

Civil Rights Restoration Act

The passage of the Civil Rights Restoration Act in 1988 reinstated federal protections against discrimination on grounds of race, sex or physical disability to an institutional-wide basis. This means that any state or local government, university or educational system, private organization, or any other institution that receives any type of federal funding must provide broad anti-discriminatory protections. The passage of this bill was the culmination of a four-year battle to overturn the effects of the 1984 Grove City vs. Bell Supreme Court decision which sharply curtailed the reach of standing civil rights laws.

Architectural Barriers Act

The Architectural Barriers Act of 1968, as amended, generally requires that all buildings designed, constructed, altered or financed with federal funding be accessible to and usable by persons with physical disabilities in accordance with a consistent set of national standards published by the government. Section 502 of the Rehab Act of 1973 established the Architectural and Transportation Barriers Compliance Board to enforce this law. See Appendix A for information on how to contact this agency.

Voting Accessibility for the Elderly and Handicapped Act of 1984

The Voting Accessibility for the Elderly and Handicapped Act improves "access for elderly and handicapped individuals to registration facilities and polling places in federal elections." State and local election officials are responsible for implementing this act's guidelines. Many states also have legislation requiring accessibility and special registration and voting accommodations for the elderly or people with disabilities.

Developmental Disabilities Assistance and Bill of Rights Act

The Developmental Disabilities Assistance and Bill of Rights Act protects workers who are mentally retarded, have cerebral palsy, epilepsy, autism, or dyslexia resulting from these conditions. The Administration for Developmental Disabilities of the Department of Health and Human Services handles complaints in this area. See Appendix A for information on how to contact this agency.

Constitutional protections

The "due process" and "equal protection" clauses of the 5th and 14th Amendments of the Constitution protect against discrimination on the job. The due process clause protects a person's "life, liberty and property" from being taken away without due process. In this context, property includes an already acquired job. The equal protection clause prohibits the employer from making unjustified or unreasonable distinctions which hinder certain groups of people.

State laws

All states have laws that sustain the rights of employees with disabilities. The ADA does not supersede any state or local law that provides greater protections than the ADA. State and local laws differ in their definition of persons with disabilities, facilities covered by access laws, standards applied to determine compliance with certain laws, exemptions, enforcement agencies, and penalties for violations. Each state has an agency that is responsible for defending the rights of persons with disabilities. These agencies are most familiar with state laws and should be contacted to confirm whether employers are violating a particular law. Each state's Governor's Committee on Employment of People with Disabilities also can provide listings of those agencies that work with people with disabilities. Appendix F lists these governor's committees.

The President's Committee on Employment of People with Disabilities publishes an excellent summary of state laws called The Law and Disabled People: Selected State and Federal Laws Affecting Employment and Certain Rights of People with Disabilities. This book covers laws concerning architectural accessibility, vocational rehabilitation, mass transportation, and non-
discrimination in employment, education, training and transportation. The book is available free from the President’s Committee. See Appendix A for the address.