The Americans with Disabilities Act (ADA) applies to employers with 15 employees or more. However, some state laws could apply to even smaller employers. Understanding the ADA can be difficult, especially after it was significantly amended effective Jan. 1, 2009. A lot of information is covered. Not surprisingly there is more to know than can fit in this blog post! But after I looked over some of the recently released regulations, I did spot some key takeaways and thought I’d share them here.
The ADA requires the employer to “dialogue” with the employee when it comes to understanding his or her work limitations and restrictions and identify appropriate accommodations, if any.1 A dialogue means multiple conversations. So, it’s not enough to converse during the initial process. You need to check back in with the employee from time to time to make sure the accommodation is still suitable.
An employer cannot require a medical examination or ask the employee if he or she is an individual with a disability, nor ask about the nature or the severity of the disability, unless such examination or inquiry is job-related and consistent with business necessity.2 I highly encourage you to review the U.S. Equal Employment Opportunity Commission’s (EEOC) guidance inquiries on medical examinations and talking to employees about suspected disabilities. The guidance is well written with clear examples. 2
You’ll want to bear in mind that the ADA is very strict about keeping medical information confidential. As an employer, you can’t disclose anything about an employee’s disability or even that the employee has a disability. Even the request for accommodation is medical information.
For example, if an employer provides an employee with a modified work schedule, the employer cannot tell other employees the individual comes in at a later time due to a reasonable accommodation.
According to the EEOC, reasonable accommodations are not limited to chairs and other ergonomic equipment. These accommodations may include:
- Making existing facilities accessible
- Job restructuring
- Part-time or modified work schedules
- Acquiring or modifying equipment
- Changing tests, training material or policies
- Providing qualified readers or interpreters
- Reassignment to a vacant position
When an employee requests a reasonable accommodation, he or she does not need to use magic words like “reasonable accommodation” or “the ADA.” In fact, the request doesn’t even have to come from the employee, it could come from his or her spouse, friend or doctor. For example, if an employee’s wife calls to say her husband is in the hospital due to a medical emergency related to his multiple sclerosis and he needs time off, this is a request for reasonable accommodation covered under the ADA. Visit the EEOC’s policy on reasonable accommodations for more information.3
By understanding the ADA, you not only ensure federal compliance, but you also can work toward a more productive work environment for your employees.
For additional guidance on the amendments specific to small employers, please visit the EEOC’s laws and regulations.4
This is the third post in a series of entries on small-employer solutions. This post is presented for informational purposes only and is not intended to provide legal advice. Employers with questions about their compliance obligations under the ADA should consult with their own legal counsel.
- U.S. Equal Employment Opportunity Commission, National Council on Disability, U.S. Department of Justice. Questions and Answers for Mediation Providers: Mediation and the Americans with Disabilities Act (ADA). U.S. Equal Employment
Opportunity Commission. Available at: http://www.eeoc.gov/eeoc/mediation/ada-mediators.cfm. July 11, 2011.
- EEOC. NOTICE. No. 915.002. June 27, 2000. The U.S. Equal Employment Opportunity Commission. Available at: http://www.eeoc.gov/policy/docs/guidance-inquiries.html. July 11, 2011.
- EEOC. NOTICE. No. 915.002. October 17, 2002. The U.S. Equal Employment Opportunity Commission. Available at: http://www.eeoc.gov/policy/docs/accommodation.html. July 11, 2011.
- Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008. U.S. Equal Employment. Opportunity Commission. Available at: http://www.eeoc.gov/laws/regulations/adaaa_qa_small_business.cfm. July 11, 2011.