What the Law Says

What is "reasonable accommodation?"

Title I of the Americans with Disabilities Act requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship.

Provisions
"Disability" defined
Qualified individual with a disability
Unlawful discrimination
Hiring practices
Drugs and alcohol
Health insurance/benefits
Enforcement

Reasonable accommodations remove workplace barriers for individuals with disabilities.

The duty to provide reasonable accommodation is a fundamental statutory requirement. Although many individuals with disabilities can apply for and perform jobs without any reasonable accommodations, there are workplace barriers that keep others from performing jobs that they could do with some form of accommodation. These barriers may be physical obstacles (such as inaccessible facilities or equipment) or they may be procedures or rules (such as rules concerning when work is performed, when breaks are taken, or how essential or marginal functions are performed).

EMPLOYMENT PROVISIONS
coverage of business: Employers with 15 or more employees engaged in an industry affecting commerce, employment agencies, labor organizations, and joint labor management committees (Employers with fewer than 15 employees are exempt.)

definition of "disability": Physical or mental impairment that substantially limits one or more major life activities of an individual; a record of such an impairment; or being regarded as having such an impairment.

qualified individual with a disability: An individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position and who, with or without reasonable accommodation, can perform the essential functions of the position. (Essential functions are tasks that are fundamental, not marginal.)

discrimination: Covered employers shall not discriminate against a qualified individual with a disability with regard to application procedures, hiring, promotion, or discharge of employees, compensation, job training and other terms, conditions, and privileges of employment.

reasonable accommodations: Modifications to the job application process, the work environment or job that will enable the qualified individual with a disability to perform the essential functions of the job or that will enable a qualified individual with a disability to enjoy equal benefits and privileges of employment. Employers do not need to provide a reasonable accommodation if they can demonstrate that doing so would result in an undue hardship.

undue hardship: The ADA requires that a reasonable accommodation be made, where requested, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business (Sec. 102(b)(5)(A)). The term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of the nature and cost of accommodation," the financial resources, size, number of employees and type of business of both the facility making the accommodation and the larger employer entity; and the impact of the accommodation on the operation of the business.

no ADA coverage: Title I does not cover employers who have less than fifteen employees, the United States government, Indian tribes or a bona fide private membership club (other than a labor organization) that is exempt from taxation under Section 501(c) of the Internal Revenue Code of 1986.

areas in which discrimination is prohibited:

advertising, recruitment and job application procedures
hiring
promotions and transfers
training
compensation
leave
fringe benefits
layoffs
terminations
employer-sponsored activities, including social and recreation activities
any other term, condition or privilege of employment

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DEFINITION OF DISABILITY
The ADA defines the term "disability" as: (A) "a physical or mental impairment that substantially limits one or more of the major activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12101(2).

physical or mental impairment means:

any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.
any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
"impairment" does not include simple physical characteristics such as eye color; hair color; left-handedness; or height, weight, or muscle tone that are within "normal" range and are not the result of a physiological disorder. Nor does the definition include common personality traits such as poor judgement or a quick temper where these are not symptoms of a mental or psychological disorder. Environmental, cultural, or economic disadvantages such as poverty, lack of education, or a prison record are not impairments. Advanced age, in and of itself, is also not an impairment. However, various medical conditions commonly associated with age, such as hearing loss, osteoporosis, or arthritis would constitute impairments within the meaning of these regulations.

"substantially limits" means:

unable to perform a major life activity that the average person in the general population can perform.
significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

major life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

Conditions excluded from the ADA definition of disability: An individual is also defined as having a disability if he or she has a record of such an impairment or (this part of the definition protects people who have a record of a disability from discrimination, whether or not they currently are substantially limited in a major life activity) is regarded as having such an impairment (this part of the definition protects people who are not substantially limited in a major life activity from discriminatory actions taken because they are perceived to have such a limitation).

homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders
compulsive gambling, kleptomania, and pyromania
an individual who is engaged in the illegal use of drugs at the time of an adverse employment action where the employer acts on the basis of such drug use
psychoactive substance use disorders resulting from current illegal use of drugs. (However, an individual who is engaged in or has completed drug rehabilitation and is no longer illegally using drugs would be considered protected under the ADA.)

analysis of substantially limits: An impairment that prevents an individual from performing a major life activity substantially limits that major life activity. An impairment is also substantially limiting if it significantly restricts the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the average person in society.

The regulation describes several factors that should be considered in determining whether an impairment is substantially limiting; nature and severity of the impairment; duration or expected duration of the impairment; and permanent or long-term impact, or the expected permanent or long-term impact of, or resulting from, the impairment.

Until recently, the EEOC has always taken the position that whether a person has a disability should be assessed without regard to the availability of auxiliary aids, medicines, or other :"mitigating measures." Under the EEOC regulation, someone with hearing loss would be defined as having a disability even if the condition were correctable with the use of a hearing aid.

However, the Supreme Court has now ruled that the determination of whether a person has an ADA disability must take into consideration whether the person is substantially limited in a major life activity when using a mitigating measure, such as medication, a prosthesis, or a hearing aid. A person who experiences no substantial limitation in any major life activity when using a mitigating measure does not meet the ADA's first definition of disability.

In all of these cases, the Supreme Court emphasized that, consistent with EEOC's position, the determination of whether a person has a "disability" must be made on a case-by-base basis.

substantially limited in working: with respect to the major life activity of working, the term "substantially limits" means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. Persons are not substantially limited in working just because they are unable to perform a particular job for one employer or because they are unable to perform a specialized job or profession requiring extraordinary skills, prowess, or talent. In addition to the general factors noted above, the EEOC regulation lists several other factors for determining whether an individual is substantially limited in the major life activity of working:

the geographical area to which the individual has reasonable access
the job from which the individual has been disqualified because of an impairment, and the number and types of jobs using similar training, knowledge, skills, or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs)
the job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not using similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).

QUALIFIED PERSON WITH A DISABILITY
An employer is not required to hire or retain an individual who is not qualified to perform a job.

The regulations define a qualified individual with a disability as a person with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.

There are two basic steps in determining whether an individual is "qualified" under the ADA:

Determine if the individual meets necessary prerequisites for the job such as education, work experience, training, skills, licenses, certificates, and other job-related requirements such as good judgement or ability to work with other people. This is sometimes referred to as determining whether the individual is "otherwise qualified."

Determine if the individual can perform the essential functions of the job, with or without reasonable accommodation. This second step, a key aspect of nondiscrimination under the ADA, has two parts:

identifying the essential functions of the job

considering whether the person with a disability can perform these functions, unaided or with a reasonable accommodation.

The ADA requires an employer to focus on the essential functions of a job to determine whether a person with a disability is qualified. This is an important nondiscrimination requirement. Many people with disabilities who can perform essential job functions are denied employment because they cannot do things that are only marginal to the job.

Reasonable accommodation is available to qualified applicants and employees with disabilities. Reasonable accommodations must be provided to qualified employees regardless of whether they work part-time or full-time, or are considered "probationary." Generally, the individual with a disability must inform the employer that an accommodation is needed.

Exclusionary selection criteria: If an individual meets all job prerequisites except those that she or he cannot meet because of a disability, the employer must show that the requirement that screened out this person is "job-related and consistent with business necessity," including that no reasonable accommodation would enable the individual to meet the requirement or perform the essential functions of the job. Selection criteria related to marginal functions that exclude an individual with a disability because of disability are not consistent with business necessity.
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UNLAWFUL DISCRIMINATION

An employer cannot classify or segregate employees or job applicants with disabilities in such a way that their employment or promotional opportunities are different from those of other employees.
An employer will be liable if an employment agency, executive recruiter, union, or insurance or other fringe benefits provider with whom the employer has a contract discriminates against the employer's applicants or employees.
An employer cannot discriminate against an applicant or employee because that person is related to or has an association with a person with a disability. This means that an employer may not refuse to hire someone because his or her spouse or child has a disability or he or she lives with a relative who has a disability.
An employer cannot refuse to make a reasonable accommodation to assist an employee or applicant with a disability unless doing so would cause an undue hardship.
An employer cannot refuse to hire or promote someone because he or she will require a reasonable accommodation.
An employer cannot use employment tests or criteria that tend to screen out applicants with disabilities unless the test is job-related and consistent with business necessity.
An employer must make certain that when a test is administered to an applicant or employee with a disability that impairs sensory, manual, or speaking skills, the test results accurately reflects whatever skills or attitude the test was designed to measure, rather than the individual's disability-impaired skills, unless these skills are the focus of the test.
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HIRING PRACTICES
Examples of questions that are permitted during the interview process:

Are you able to peform these tasks with or without reasonable accommodation?
This job requires working varied schedules. Can you do that?
Can you lift up to 50 pounds with or without accommodation?
Can you tell me about the duties of your last job?

Examples of questions that are prohibited during the interview process:

Why are you using a wheelchair?
Have you ever had a mental illness?
Do you have a disability or illness that I should know about?
Have you ever been hospitalized? If so, for what reason?
How many days were you absent from work last year due to illness?
Have you ever filed for workers' compensation insurance?
Have you ever been treated for any medical condition?

medical examinations at employment entrance: Under the ADA it is illegal to conduct medical exams before an employment offer. Additionally, an employer may not make disability-related inquiries or asks about workers' compensation history at the pre offer stage. A covered entity may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant but before employment duties begin, and may condition the offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of disability. If the employer withdraws an offer based on exam results, the employer must be able to prove that:

The exclusionary criterion does not screen out or tend to screen out an individual with a disability or a class of individuals with disabilities.
The exclusionary criterion is job-related and consistent with business necessity and no reasonable accommodation will enable the person to perform the essential functions of the job.

confidentiality and limitation on use of medical information:
Although the ADA does not limit the nature or extent of post-offer medical examinations and inquiries, it imposes very strict limitations on the use of information obtained from such examinations and or inquiries. These limitations also apply to information obtained from examinations or inquiries of employees.

All information obtained from post-offer medical examinations and inquiries must be collected and maintained on separate forms, in separate medical files, and must be treated as a confidential medical record. Therefore, an employer should not place any medically related material in an employee's personnel file.

The employer should take steps to guarantee the security of the employee's medical information. This could include:

keeping the information in a medical file in a separate, locked cabinet, apart from the location of personnel files
designating a specific person or persons to have access to the medical file

All medically related information must be kept confidential, with the following exceptions:

Supervisors and managers may be informed about necessary restrictions on the work or duties of an employee and necessary accommodations.
First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment or if any specific procedures are needed in the case of fire or other evacuations.
Government officials investigating compliance with the ADA should be provided relevant information on request.
Relevant information may be provided to state workers' compensation offices, "second injury" funds, or workers' compensation insurance carriers in accordance with state workers' compensation laws.
Relevant information may be provided to insurance companies that require a medical examination to provide health or life insurance for employees.
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DRUGS AND ALCOHOL
The ADA specifically permits employers to ensure that the workplace is free from the illegal use of drugs and the use of alcohol, and to comply with other federal laws and regulations regarding alcohol and drug use. At the same time, the ADA provides limited protection from discrimination for recovering drug addicts and for alcoholics.

Overview of Legal Obligations

An individual who is currently engaged in the illegal use of drugs is not an "individual with a disability" when the employer acts on the basis of such use.
An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace.
It is not a violation of the ADA for an employer to give tests for the illegal use of drugs.
An employer may discharge or deny employment to persons who currently engage in the illegal use of drugs.
An employer may not discriminate against a drug addict, who is not currently using drugs and who has been rehabilitated, because of a history of drug addiction.
A person who is an alcoholic is an "individual with a disability" under the ADA.
Employees who use drugs or alcohol may be required to meet the same standards of performance and conduct that are set for other employees. Employees may be required to follow the Drug-Free Workplace Act of 1988 and rules set by federal agencies pertaining to drug and alcohol use in the workplace.

HEALTH INSURANCE (AND OTHER BENEFIT PLANS)
An employer or other covered entity may not limit, segregate, or classify an individual with a disability, on the basis of disability, in a manner that adversely affects the individual's employment. This prohibition applies to the provision and administration of health insurance and other benefit plans such as life insurance and pension plans. This means that:

Employees with disabilities must be given equal access to whatever insurance or benefit plans the employer provides.
An employer cannot deny insurance to an individual with a disability or subject an individual with a disability to different terms or conditions of insurance, based on disability alone, if the disability does not pose increased insurance risks. Nor may the employer enter into any contract or agreement with an insurance company or other entity that has such effect.
An employer cannot fire or refuse to hire an individual with a disability because the employer's current health insurance plan does not cover the individual's disability, or because the individual may increase the employer's future health care costs.
An employer cannot fire or refuse to hire an individual (whether or not that individual has a disability) because the individual has a family member or dependent with a disability that is not covered by the employer's current health insurance plan, or that may increase the employer's future health care costs.
An employer may provide coverage in accordance with accepted principles of risk assessment and/or risk classification through an insurance carrier that is regulated by state law, even if this causes limitations in coverage for individuals with disabilities. The same is true of self-insured plans not subject to state law.
An employer may continue to offer health insurance plans that contain pre-existing condition exclusions, even if this adversely affect individuals with disabilities, unless these exclusions are being used as a subterfuge to evade the purpose of the ADA.
An employer may continue to offer health insurance plans that limit coverage or reimbursement for certain drugs or procedures; for example, limiting particular treatments to a specified number per year, even if these restrictions adversely affect individuals with disabilities, as long as the restrictions are uniformly applied to all insured individuals, regardless of disability.

The area of employer-provided and labor union-provided health insurance is still evolving and may not be firmly settled until a case is decided by the U.S. Supreme Court. Another potential development that may dramatically alter the law on this issue would be the enactment of a federal universal health care program
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ENFORCEMENT OF THE ADA
The employment provisions of the ADA are enforced under the same procedures now applicable to race, sex, national origin, and religious discrimination under Title VII of the Civil Rights Act of 1964. Charges may be filed with the Equal Employment Opportunity Commission or designated state human rights agencies.

remedies

hiring
reinstatement
back pay
court orders to stop discrimination
compensatory and punitive damages

defenses: It may be considered a defense to a charge of discrimination based on the application of qualification standards, tests, or selection criteria that have denied jobs or benefits to disabled individuals, that the standards or criteria are job-related and consistent with business necessity, and performance cannot be accomplished with a reasonable accommodation.

conflict with other federal laws: It may be a defense to a charge of discrimination under this part that a challenged action is required or necessitated by another federal law or regulation, or that another federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required by this part.

religious organizations: Religious organizations may give preference in employment to individuals of a particular religion and may require that all applicants and employees conform to the religious tenets of their organization. A religious organization may not discriminate against an individual who satisfies the religious criteria because the person is disabled.

food handlers. An employer may refuse to assign or continue to assign an individual with an infectious communicable disease that is transmitted to others through the handling of food, when the disease is listed by the Secretary of Health and Human Services as a disease that may be transmitted through handling the food supply, and the risk cannot be eliminated by reasonable accommodation.

direct threat. It may be a defense to a charge of discrimination if the individual with a disability poses a direct threat to the safety or health of him or herself or others.

undue hardship. An employer may offer (and prove) as a defense that it would have been an undue hardship to make the accommodation.
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For further resources and information on the ADA employment provisions, see Other Resources.

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ACCESS FOR ALL, A Guide for Implementing the ADA, was produced by the Cornell University Employment and Disability Institute, with funding from the U.S. Department of Education National Institute on Disability and Rehabilitation Research [Grant H133A70005].