The Americans with Disabilities Act and Employment

It is important that AFSCME representatives are familiar with the ADA and other federal, state and local laws that protect the rights of persons with disabilities, and know whom to contact about violations and discrimination. The ADA is by far one of the most important laws for state and local government employees.

How does the ADA affect employment?

Title I of the ADA prohibits discrimination based on disability in employment. Title II of the act addresses state and local governments, programs and services, including employment. Though the two titles share many of the same provisions, there are some significant differences between public- and private-sector employment, most notably the fact that state and local government employees were covered as of Jan. 26, 1992. Title I became effective July 26, 1992 for employers with 25 or more employees. As of July 26, 1994, employers with 15 or more employees were covered.

Who is covered?

The ADA bans employment discrimination against a qualified person with a disability who, with or without a reasonable accommodation, can perform the essential functions of a job that he or she holds or desires. An employer does not have to provide a reasonable accommodation if doing so would impose an undue hardship on the employer's operation. The essence of the law's employment provisions centers on the highlighted phrases.

A person with a disability is anyone who:

• has a physical or mental impairment that substantially limits at least one major life activity (such as walking, talking, seeing, hearing, learning, breathing, working and performing manual tasks such as reaching, standing and lifting);
  
  
• has a history of, or has recovered from, such an impairment (such as cancer or emotional illness); and/or
  
  
• is perceived as having an impairment (such as a facial disfigurement or the mistaken belief that a person is HIV positive or is a person with AIDS).
  
  

The limitation is in comparison to an average person in the general population who can perform these activities with little or no difficulty.

In July 1999, the Supreme Court decided two cases that have had a substantial impact on the way that the Americans with Disabilities Act (ADA) is interpreted. The court was asked to determine whether the definition of disability depended upon a person's ability to perform a job, either with, or without, assistive devices or medications.

In Sutton vs. United Air Lines, Inc., and Albertsons, Inc. vs. Kirkingburg, the court decided that a disability under the ADA must be evaluated taking into account any medications or other mitigating measures that a person might have available. Therefore, according to the ruling, an individual whose disability is correctable would not meet the legal definition of disability and as a result, would not be able to take advantage of the protections provided by the law.

For example, a person with poor vision that is not correctable by lenses would meet the definition of having a disability; however, if the person were able to use corrective lenses that bring the person's vision close to 20/20 vision, then that person would not be considered disabled and therefore would not be covered by the ADA.

Users of illegal drugs are not protected by the ADA. However, individuals who are enrolled or who have completed drug or alcohol rehabilitation programs are protected.

Reasonable accommodation means making modifications or adjustments to a job application process or work environment that enable a qualified individual with a disability to perform the essential functions of a position. Examples include buying new equipment, restructuring jobs, making a work area accessible, assigning a person to a vacant position, modifying employment exams and training materials, re-allocating marginal job duties, or providing interpreters.

The essential functions of a job can be determined based on several elements, including written job descriptions, the amount of time spent on the essential functions, the experience of past and current incumbents, and the terms of a collective bargaining agreement. Essential qualifications may also include academic standards, such as a degree in a particular discipline; technical credentials or appropriate experience; or fair and explicit performance standards such as the ability to lift a certain weight or repair an automobile. Since written job descriptions are significant to the determination of whether a person is a qualified person with a disability, AFSCME should monitor any revision of job descriptions to ensure that they are accurate.

An undue hardship is a significant difficulty or expense that would be unduly disruptive to the employer. Considerations include the nature and cost of the accommodation; the overall size and financial resources of the facility; the employer's overall operation, including the composition, structure and functions of its workforce; and the geographic, administrative and fiscal relationship between the facility and the employer or any parent organization.

An employer or labor union is prohibited from discriminating against a qualified person with a disability in the following areas: recruitment, advertising, job application process, hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, rehiring, compensation, job assignments, job classifications, organizational structures, position descriptions, seniority, leaves of absence, sick leave, any other type of leave, fringe benefits available through employment — even if not administered by the employer, and selection for training, apprenticeships, and attendance at professional meetings and other conferences.

Legal questions have arisen when an employer wishes to provide accommodation to a disabled worker by transferring him/her into another position held by someone else. In these cases, the courts have generally held that the seniority provisions of a collective bargaining agreement must be adhered to. In those cases, the employer may not bump another individual with seniority from a position in order to accommodate the disabled person.

The ADA also prohibits discrimination against people who are related to or who associate with people with disabilities. However, an employer is not compelled to make any accommodations for the employee.

Putting the law into practice: Reasonable accomodation on the job

Reasonable accommodation means adapting the job site or job functions to fit a qualified person with a disability. This does not mean that the employer must lower the standards of work for the position, or change the job requirement. Employees must meet reasonable attendance and performance standards set for all employees.

AFSCME members have won many victories fighting for reasonable accommodations. In Missouri, a county corrections department transferred a corrections officer with rheumatoid arthritis to a clerical job after many meetings with the union. In New York City, a local union fought to have a reader hired for a welfare caseworker.

Obviously, the phrase "reasonable accommodation" is subject to different interpretations. Because these accommodations must match a particular person with a specific job, the required accommodation depends on the specific work situation and the person with a disability who is being accommodated. The affected employee should always, therefore, be consulted before the accommodations are made. In many cases, the employee knows immediately what the reasonable accommodation should be and the process is very informal. When there is an adversarial relationship or where the required reasonable accommodation is complicated, a more formal procedure may be necessary. Since the ADA states that the employer can decide what the reasonable accommodation is, the union should ensure that an employee has the right to have union representation, if he or she so chooses, during any reasonable accommodation discussion.

In some cases, allowing an individual to work from home for specified times has been an acceptable accommodation. The individual is provided with the equipment needed to accomplish the job tasks and the work is transmitted electronically to the workplace.

Transferring an individual to a light duty job can also be a reasonable accommodation, especially if the disability is temporary as a result of injury.

Moreover, not all disabilities are apparent to the employer. The employer is obligated to accommodate an employee only to the extent that the disability is known. The burden is on the employee to tell the employer if he or she needs an accommodation.

The Job Accommodation Network (JAN), an information and consulting service which provides individualized accommodation solutions to employers, is indispensable to many employers and workers, particularly those who are unfamiliar with accommodations. Many people expect expenses associated with job accommodations to be exorbitant. However, research by the U.S. Department of Labor confirms that cost is not the major factor in most job accommodation decisions. In fact, a recent JAN survey indicates that 31 percent of all accommodations cost nothing; 19 percent cost less than $50; and 70 percent cost less than $500. By using JAN, employers can receive information and relevant options on how to accommodate an employee with a disability.

JAN operates a toll-free number where users can speak to consultants who are trained to provide low-cost, efficient solutions whenever possible. A consultation is free. In exchange, JAN only requests that an employer provide information regarding the accommodations that he or she made. The JAN toll-free number is 1-800-526-7234. The JAN e-mail address is jan@jan.icdi.wvu.edu.

Resolution of conflicts at a worksite will depend not only on the facts, but also upon the skills and knowledge of the union representatives. Employers are often unaware of the term "reasonable accommodation" or the fact that accommodations can be done very inexpensively. Union representatives should be familiar with the various types of accommodations to recommend to the employer. Many of the organizations listed in Appendix A can help design accommodations for employees with disabilities. Appendix D diagrams the accommodation process used by the Job Accommodation Network.

Benefits and costs of reasonable accommodation

The specific accommodations that an employer may be required to make depend on the specific work situation as well as the applicable law or regulation. If the employer can argue convincingly that an accommodation is too expensive and presents an undue hardship, then the accommodation may not be required by law. The courts, however, have not been overly tolerant of this claim. The undue hardship exception is essentially the result of a cost-benefit analysis; if the cost of the accommodation "unduly" exceeds the benefit, then the employer does not need to accommodate the employee. However, the ADA's legislative history confirms that the cost of the accommodation should not be compared to the employee's salary.

The employer may not be aware that there are many inexpensive accommodations that can be made such as:

• installing paper cup dispensers to allow people in wheelchairs to use water fountains, instead of buying new water fountains;
  
  
• adding inexpensive Braille or raised letter and number tabs to doors and elevator control panels, or providing a wooden pointer to reach the upper buttons of the elevator control panel, instead of installing new elevator control panels;
  
  
• changing desktops and tables to appropriate heights for persons who are very short or who use wheelchairs, instead of buying new desks;
  
  
• replacing knobs on a microfilm viewer with levers so that an employee with cerebral palsy can have access to source documents, instead of buying a new viewer;
  
  
• using a rubber stamp so that a computer programmer with severe spasticity can draw logic charts, instead of conventional templates; and/or
  
  
• modifying the keys of a tape recorder so that workers with minimal hand function can use the recorder as a notebook instead of buying an expensive special tape recorder.
  
  

Usually, an employer will not be able to prove undue hardship. Furthermore, many modifications also help non-disabled employees. Widened doorways, enlarged elevators, curb cuts and ramps allow for easier movement of heavy equipment and strollers and are helpful for people who are temporarily disabled.

Important things to remember about reasonable accommodation

• The employer can decide what the reasonable accommodation is.
  
  
• Reasonable accommodation does not have to be state-of-the art.
  
  
• The provided reasonable accommodation does not have to be the employee’s first choice.
  
  

Direct threat

In order to avoid hiring an employee with a disability or making reasonable accommodations, employers often claim that an employee's disability or a potential accommodation will present a safety problem to the employee, to other employees, or to the public. A person is not a qualified individual with a disability if "that individual poses a direct threat to the health or safety of him or herself or others." A direct threat is defined as "a serious risk to the health or safety of the individual or others that cannot be reduced by reasonable accommodation."

The determination that a person poses a direct threat may not be based on generalizations or stereotypes about a specific disability. It must be handled on a case-by-case basis that relies on current medical evidence; the nature, duration and severity of the potential risk; the probability that the potential injury will occur; and whether reasonable accommodations will moderate the possibility or result of the risk. The burden for proving that an individual poses a direct threat is on the employer.

For example, a U.S. District Court ruled that the District of Columbia fire department was discriminating when it withdrew an offer of employment to an applicant who was HIV-positive. Based on medical evidence, the court said that the risk of transmitting the virus was so low that there was not a direct threat to the public or other firefighters.

There are also special provisions for food handlers. The ADA requires the Secretary of Health and Human Services to publish an annual list of infectious and communicable diseases that are transmitted by handling food. Employers may transfer individuals with the listed conditions from food handling positions if the risk of transmitting the disease through the handling of food cannot be eliminated through a reasonable accommodation.

Medical inquiries and examinations

One of the most significant rules in the ADA is that pre-offer medical examinations or inquiries are banned. This means that an employer cannot ask an applicant such questions as "Have you ever been hospitalized?" or "How did you get that limp?" An employer may ask a job applicant how he or she will do a job with or without a reasonable accommodation. In addition, an interviewer cannot ask an applicant or employee about his or her workers' compensation history. Appendix B contains a list of questions that are now illegal under the ADA.

A job offer can be conditional on the applicant passing a medical exam or inquiry. However, all entering employees in that job class must be given the same exam and any exclusionary criteria must be job-related. In addition, the employer must prove that there is no reasonable accommodation that enables the person to be a qualified person with a disability. Physical agility tests are not considered medical exams.

The employer must keep all medical results in a separate file and keep them in a confidential manner. Only three groups are allowed access to the files: supervisors who need to know about any work restrictions, first aid personnel and government officials who are checking compliance.

Employers can also continue to require medical exams of incumbent employees only if the exams serve a "legitimate business purpose." For example, an employer may not require an employee to see a doctor just because he or she begins to use an increased amount of sick leave. The employer must prove that any required medical tests are "job-related and consistent with business necessity." Thus, fitness for duty exams are still permitted under the ADA. Voluntary medical programs such as wellness programs or blood pressure testing are still allowed but any disclosed medical information must be kept confidential.

Drug testing

ADA is neutral on testing for illegal drugs; the law neither prohibits nor encourages it. Drug tests are not considered medical exams.

Health insurance

An employer must provide the same health insurance options to all employees — whether or not they are people with disabilities. An employer cannot deny insurance to an employee with a disability, refuse to hire an applicant with a disability, or fire an existing employee for fear that future health insurance costs will increase. However, an employer may continue to offer health insurance plans that contain pre-existing condition exclusions, as limited by HIPAA,¹ even if this adversely affects employees with disabilities, as long as these exclusions are not being used as subterfuge to avoid the ADA. An employer may also continue to provide health insurance plans that limit coverage for certain procedures or limit the number of treatments for certain procedures, even if these restrictions adversely affect individuals with disabilities, as long as the restrictions are applied to all employees. For example, an employer can offer a health insurance plan that limits the number of blood transfusions per year or that does not cover experimental drugs or procedures as long as this restriction is applied to all individuals and for all experimental procedures.

With the passage of the Mental Health Parity Act of 1996, employers are required to equalize benefit limits for both mental and physical conditions in their health insurance plans. Employers may, however, continue to offer plans with higher deductibles for co-payments for mental health treatment than for medical treatment and may also limit hospital stays or the number of therapy sessions for psychiatric illness. Congress has not addressed whether insurers and employers can make distinctions in disability benefits between mental and physical conditions. The courts have been inconsistent in their rulings regarding this issue. In Parker vs. Metropolitan Life Insurance, the Sixth U.S. Circuit Court of Appeals ruled that caps on mental health benefits under group disability plans don't violate the ADA. However, in Lewis vs. Aetna Life Insurance Company and K-Mart Corporation, the U.S. District Court for the Eastern District of Virginia ruled that K-Mart discriminated against an employee with depression when it offered a long-term disability plan that limited disability benefits to a period of 24 months for mental impairments without imposing a similar cap on benefits for physical impairments.

Worker's compensation

Employers are often afraid that hiring individuals with disabilities will raise their workers' compensation costs. However, this is not the case. The nature of the business, the size of the payroll, and individual employer experience determine workers' compensation rates — not the number of employees with disabilities on the payroll. Furthermore, under the ADA, employers may not inquire about an applicant's workers' compensation history before making a conditional offer of employment. After making a conditional job offer, an employer may ask about a person's compensation history in a medical examination, but only if all applicants in the same job category are subjected to such an examination. An employer may not refuse to hire or fire an individual with a disability because he or she thinks that having that person on staff will lead to raised workers' compensation costs.

Even if an employee receives benefits under workers' compensation or other disability laws, he or she may not necessarily be considered disabled under the ADA. The person must still meet the ADA definition of a "qualified person with a disability." In general, the ADA supersedes any conflicting state workers' compensation laws.

Many employers have established light duty jobs for workers recovering from job-related injuries. The ADA does not require an employer to create a light duty position unless the "heavy duty" tasks that the individual cannot perform are marginal job functions.

Contact your state Workers’ Compensation office directly to find out more about the laws in your state.

Additional responsibilities for state and local governments

State and local governments have additional obligations under the law:

• Self evaluation: By Jan. 26, 1993, state and local governments were required to evaluate their policies and programs to identify and correct any that do not comply with the ADA.
  
  
• Designation of employee responsible for the ADA: A jurisdiction that employs more than 50 people must designate at least one employee to coordinate its ADA compliance efforts, including investigation of complaints. The jurisdiction must provide, on request, the name, office address and telephone numbers of this individual.
  
  
• Grievance procedure: A state and local government that employs 50 or more employees must adopt and publish a grievance procedure for ADA complaints. This grievance procedure is separate from any grievance procedure found in the collective bargaining agreement and can be used as a separate course of action.
  
  
• Surcharges: State and local governments may not levy a surcharge on an individual with a disability or a group of individuals with disabilities to cover any extra costs associated with producing materials in alternative formats or making other reasonable accommodations.
  
  

--------------------------------------------------------------------------------

¹ Under the Health Insurance Portability and Accountability Act of 1996, a pre-existing condition exclusion may not last for more than 12 months after an individual's enrollment date.