The federal Americans with Disabilities Act of 1990 (ADA), employers are prohibited from firing, refusing to hire or rehire, or otherwise discriminating against qualified handicapped employees because of disability. Many state laws define a “handicapped person” as any person who:
- Has a physical or mental impairment which substantially limits one or more major life activity,
- Has a record of such impairment, or
- Is regarded as having such an impairment.
Having documentation of such an impairment could refer, for example, to a person with a history of mental illness, or someone who has cancer that is in remission.
An employee who is perceived and treated as though he or she has a substantially limiting disability, even if that perception is inaccurate, is also protected under the ADA. This may include, for example, an individual with disfiguring scars who is fully qualified and capable of performing a job, but is not hired because the employer worries that coworkers will react negatively.
Reasonable Accommodation
Employers are responsible for making reasonable accommodations for workers with genuine disabilities who are otherwise capable of performing the required work. The reasonable accommodations are meant to be worked out between the employer and the employee, and each side is under an obligation to work in good faith toward a mutually acceptable solution. These accommodations might involve physical access to a desk or work station, adapted computer equipment, reassignment of work schedules, devices to correct deficiencies in hearing or vision, or allowances of time for medical treatment according to a schedule. The following are some of the things that may be a reasonable accommodation:
- Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
- Job restructuring, modifying work schedules, reassignment to a vacant position;
- Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.
- An employer is expected to work with you to find the best solution for you and the company that would allow you to do your job.
Sometimes taking leave is a reasonable accommodation. The Family Medical Leave Act (FMLA) gives many employees up to twelve weeks of unpaid leave. This leave could be taken incrementally, including in the form of half days, coming to work later than normal, or leaving earlier. Taken a few hours at a time, twelve weeks can stretch out for a long time. An employee whose FMLA leave request is denied may have both a violation of the FMLA and the ADA.
To prevail in an ADA action for disability discrimination, the plaintiff must show that he or she is an employee, has a disability, is a qualified individual capable of performing the essential functions of the job either with or without reasonable accommodation, and was unlawfully discriminated against because of his or her disability. In an ADA action for reasonable accommodation, the employee bears the burden of proving that a particular accommodation would allow him or her to perform the jobs essential functions and that the requested accommodation is reasonable to the employer. An employee alleging an ADA may receive backpay plus compensatory damages and punitive damage if it is shown that the employer violated the ADA.
It may therefore be illegal for an employer to do any of the following:
- Ask a job applicant about his or her health conditions
- Require a job applicant to take a medical exam
- Refuse to hire a qualified person with a disability
- Refuse to take reasonable steps to modify a disabled employee’s work station or job duties
- Fire an employee who develops a disability but can still do his or her job with a reasonable accommodation
- Refuse to find modified or alternative work for an injured employee
- Refuse to allow an injured employee to return to work unless “fully healed”
- Refuse to have a meaningful discussion with a disabled employee about a reasonable accommodation
- Refuse to return an employee to work after the employee has received workers’ compensation
