Frequently Asked Questions Q: What employers are covered by Title I of the Americans with Disabilities Act (ADA), and when is the coverage effective? The Title I employment provisions apply to private employers, State and local governments, employment agencies, and labor unions. Employers with 25 or more employees were covered as of July 26, 1992. Employers with 15 or more employees were covered two years later, beginning July 26, 1994. Q: What practices and activities are covered by the employment nondiscrimination requirements? The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities. Q: Who is protected from employment discrimination? Employment discrimination is prohibited against “qualified individuals with disabilities.” This includes applicants for employment and employees. Q: What is the definition of a disability under the ADA? Under the ADA, an individual is considered to have a disability if s/he has a physical or mental impairment that substantially limits one or major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability are also protected. Q: Who is a "qualified individuals with a disability"? A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the “essential functions” of the position with or without reasonable accommodation. Q: Does an employer have to give preference to a qualified applicant with a disability over other applicants? No. An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability. Q: What limitations does the ADA impose on medical examinations and inquiries about disability? An employer may not ask or require a job applicant to take a medical examination before making a job offer. It cannot make any pre-employment inquiry about a disability or the nature or severity of a disability. An employer may, however, ask questions about the ability to perform specific job functions and may, within certain limitations, ask an individual with a disability to describe or demonstrate how s/he would perform these functions. Q: Does the ADA require employers to develop written job descriptions? No. the ADA does not require employers to develop or maintain job descriptions. However, a written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence along with other relevant factors. Q: What is a "reasonable accommodation"? A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodations also include adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities. Q: When is an employer required to make a reasonable accommodation? An employer is only required to accommodate a ‘known’ disability of a qualified applicant or employee. The requirement generally will be triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual’s known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer. Q: What are the limitations on the obligation to make a reasonable accommodation? The individual with a disability requiring the accommodation must be otherwise qualified, and the disability must be known to the employer. In addition, an employer is not required to make an accommodation if it would impose an “undue hardship” on the operation of the employer’s business. “Undue hardship” is defined as “an action requiring significant difficulty or expense” when considered in light of a number of factors, and is determined on a case-by-case basis. Q: Can an employer be required to reallocate an essential function of a job to another employee as a reasonable accommodation? No. an employer is not required to reallocate essential functions of a job as a reasonable accommodation. Q: Is telecommuting a reasonable accommodation? Telecommuting may be a reasonable accommodation depending on the kind of job you have and whether the essential functions of the job can be performed off-site. The Equal Employment Opportunity Commission (EEOC) lists the following factors to be considered when deciding whether telecommuting is a reasonable accommodation: Whether the employer can adequately supervise the employee Whether certain equipment or tools that cannot be replicated at home are required Whether face-to-face interaction with other employees is needed Whether in-person interaction with outside colleagues, clients, or customers is necessary Whether the job requires the employee to have immediate access to documents or other information located only in the workplace If an employer already allows telecommuting for employees, but requires employees to work for a specific number of months or years before becoming eligible for telecommuting, it might be a reasonable accommodation for the employer to waive its time requirement for employees with disabilities. Under these circumstances, the employer has likely already determined that employees are capable of performing their job duties while working from home. If, however, the nature of the job is such that physical presence at the workplace is necessary, then telecommuting might not be a reasonable accommodation. Q: What is an "undue hardship"? Undue hardship is an “action requiring significant difficulty or expense.” This is decided by looking at factors like the nature and cost of the accommodation compared to the size, the overall financial resources of the employer, and the structure of the business. If the employer is part of a larger entity, the overall resources of the larger organization are also considered. For these reasons, cost alone is rarely found to be an undue hardship, except possibly for very small employers. However, if an accommodation has a significantly negative effect on the employer’s business operation, the may be considered an undue hardship. Q: What happens if the employer can show that my accommodation request is an undue hardship? Even if a particular accommodation would be an undue hardship on the employer, the employer must consider other options to try to find an accommodation that would not pose an undue hardship. In the rare case that the cost of the accommodation poses an undue hardship, the employer should provide the cost up to the point that there is an undue hardship and then allow the employee the option of paying for the other portion of the cost. Likewise, if the employer gets money from an external source, like a state vocational rehabilitation agency, that would pay the entire cost of the accommodation, it cannot claim cost as an undue hardship. Q: As long as my office is accessible, do the other parts of the office, like the kitchen and break room, have to be accessible? Yes. Employees with a disability should have access to areas where they work, as well as non-work areas, such as break rooms, lunch rooms, training rooms, kitchens, and restrooms, used by other employees, unless providing access would be an undue hardship. Even events like conferences and parties held out of the office should be accessible. Q: What if the employer refuses to hire me because the HR person thinking it wouldn’t be safe to have me around? The ADA lets employers establish standards for determining whether an employee poses a direct threat to the health or safety of that individual or others. Direct threat is defined as "significant risk of substantial harm to the health and safety of the individual or others if, and only if, that risk cannot be eliminated or reduced by reasonable accommodations." Deciding that an employee is a direct threat must be based on an individual assessment of that particular employee and must be based on the best available medical or other object evidence, as opposed to generalizations, ignorance, stereotypes, fears, or patronizing attitudes. For example, it would violate the ADA if an employee with bipolar disorder is fired after disclosing his/her disability because a supervisor believes people with bipolar disorder are dangerous. This reaction is based on myths and stereotypes rather than the best available evidence. Q: If I use illegal drugs or am an alcoholic, and I covered by the ADA? The ADA treats individuals who use illegal drugs differently from individuals who misuse alcohol. People who are currently engaging in the use of illegal drugs are specifically excluded from the ADA definition of "qualified individual with a disability." Therefore, employers may take action against the employee on the basis of drug use without violating the ADA. However, a person who used illegal drugs in the past but went through a rehabilitation program is considered to be a person with a disability and is protected from discrimination. Alcoholism is treated differently under the ADA. A person who currently uses alcohol is not automatically denied protection. A person who has alcoholism may be considered to be a person with a disability depending on whether the person has an impairment that substantially limits a major life activity. If you have alcoholism and meet the ADA’s definition of disability, you may be entitles to a reasonable accommodation, such as leave for treatment or therapy. It is not a reasonable accommodation to allow an employee to consume alcohol, or be under the influence of alcohol, at work if this violates legitimate workplace rules. An employer may discipline or even fire you if your alcohol use affects your job performance or conduct. And of course, your employer may have a drug-free and alcohol-free workplace policy. Q: If I have a disability, can my employer evaluate my job performance using the same performance and conduct standards that they use for everybody else? Generally, yes, as long as the same standards apply to everybody. An employer can evaluate performance standards, such as how well the employee performs both essential and marginal job functions and whether the employee is meeting basic job requirements like teamwork, customer service, work output, and product quality. Employers may also evaluate and enforce conduct standards like appearance standards, rules against destroying company property, rules about computer and equipment usage, and attendance requirements. Your employer may not, however, use standards that are not job-related if the standards have the effect of discriminating on the basis of disability. Q: Is an employer allowed to require the same quantitative and qualitative requirements for performance as it requires for employees without disabilities? Yes. An employee with a disability should meet the same production standards as all other employees doing the same job. Employers do not have to lower production standards as a reasonable accommodation. However, a reasonable accommodation might be required to assist employees with disabilities in meeting the same production standards. Q: If an employee with a disability violates a workplace conduct standard, can the employee be disciplined? Generally, yes, as long as the conduct standard is job-related and consistent with business necessity, and all other employees are held to the same standard. For example, if an employee who uses a wheelchair starts frequent arguments with his/her supervisor or co-workers, s/he may be disciplined because that conduct is not related to his/her disability. The ADA does not generally protect employees from the consequences of violating conduct standards, even when the violation is caused by the disability. However, employers may be required to provide reasonable accommodations to enable the employee to meet the conduct standards. Q: Is it all right for an employer to require an employee to get or change treatment for a disability to help or comply with a conduct standard? No. Decisions about medications and medical treatment are generally personal medical decisions that take into account a number of factors about which the employer may not be aware or have the expertise to consider. Even if the employers just want to help the employee, they should discuss the unacceptable conduct rather than medical treatments or medications to treat a disability. Q: Does having a disability protect me from being fired or laid off? No. Title I of the ADA protects employees from being discriminated against on the basis of disability. It is not a violation for an employer to fire, demote, not promote, reduce hours, or change any other condition of employment for some other reason that is not related to your disability. The same situation exists with layoffs or reductions-in-force. If your discharge is not based on your disability, your employer has not violated the ADA. Q: What should I do if my employer has discriminated against me because of my disability? Complaints may be filed with either the EEOC or, in Rhode Island, the Human Rights Commission. Private lawsuits are also an option, but you cannot file a lawsuit until after the EEOC or the Human Rights Commission has investigated your complaint and has issued a notice that’s referred to as a "Right to Sue Letter."