Americans with Disabilities Act: overview of the employment provisions.

Americans with Disabilities Act:

Among the more important provisions of the Americans with Disabilities Act (ADA), signed into law on July 26, 1990, are the following:

* Once fully in effect, the ADA will cover all employers with 15 or more employees.

* The ADA covers not only persons with disabilities, with a record of having been disabled, or perceived as being disabled, but also individuals related to or associated with persons who fit into one of those three categories.

* The ADA contains a broad definition of "accommodation," requiring, for example, that an employer give consideration to job restructuring, part-time work, employee transfer to vacant positions, and other similar actions.

* The enforcement scheme has been taken from the Civil Rights Act of 1964, as amended, permitting individuals to file charges of discrimination with the Equal Employment Opportunity Commission and, eventually, to seek redress of complaints in federal court.

* Preemployment inquiries concerning whether an applicant is disabled are prohibited; employers are permitted to conduct post-offer medical examinations on a limited basis in order to assess the applicant's ability to perform the job at issue.

* Current users of illegal drugs are not protected, and employers are free to test applicants for drug use. By contrast, alcoholics are protected to the extent that they can perform unless they are under the influence of alcohol in the workplace.

* The ADA did not repeal the Rehabilitation Act, which remains applicable to government contractors and subcontractors, recipients of federal financial assistance, and the federal government. The Rehabilitation Act was amended to bring its treatment of drug addicts and users into line with that of the ADA.

General Definitions

Disability - The ADA borrows from the Rehabilitation Act of 1973 and states that |"disability' means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such impairment; or being regarded as having such an impairment."

The ADA does not state what physical or mental impairments constitute disabilities but does contain a number of exclusions: homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender der identity disorders not resulting from physical impairments, and other sexual disorders; and compulsive gambling, kleptomania, and pyromania.

The ADA also excludes an individual who is engaged in the use of illegal drugs at the time of an adverse employment action where the employer acts on the basis of such drug use. Persons suffering from psychoactive substance use disorders also are not protected by the ADA. (As noted below, however, an individual who is engaged in or has completed drug rehabilitation and is no longer using drugs would be considered protected under the ADA.)

Employer - An employer is defined as anyone having 25 or more employees during the first two years the law is in effect. (As noted below, the law does not take effect until July 26, 1992.) After the two-year period ends, an employer will be anyone having 15 or more employees. Smaller employers thus have a four-year grace period before the ADA becomes applicable to them. Employers include any public, private, or quasipublic entity other than the United States or a bona fide private club. The term also includes labor unions.

ADA Protections - The ADA protects an employee or job applicant who is able to perform the essential functions of the job, with or without the employer making a "reasonable accommodation for that disability." The ADA further states that an employer's determination as to what constitutes the "essential functions" of a job will be given consideration. A written job description prepared before the employer advertises or otherwise seeks applicants for a job will also be considered evidence of the essential functions of a job.

Reasonable Accommodation - The ADA views reasonable accommodation broadly and provides examples of such accommodations:

* Making existing facilities used by employees readily accessible to and usable by individuals with disabilities.

* Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modification or examinations, training materials, or policies; the provisions of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

The ADA definition of reasonable accommodations is broad, and the legislative history takes a similarly broad view of what an employer will be required to do to meet its obligations under the Act. As the next section notes, however, the ADA does provide for a defense of "undue hardship."

Undue Hardship - The term is generally defined as "requiring significant difficulty or expense." The size of the business, the size of its budget, the nature of its operation, the number of its employees, the composition and structure of its workforce, and the nature and cost of the accommodation are acceptable criteria for the defense.

The legislative history indicates that a larger or wealthier employer would be required to spend more money or to undertake a greater effort than would a smaller company to accommodate an employee's disability. The legislative history specifically referenced current regulations implementing sections 501 and 504 of the Rehabilitation Act, which provide illustrative examples of accommodations.

Range of Prohibitions - Discrimination based on a disability is prohibited in hiring, promotions and transfers, training, compensation, fringe benefits, layoffs, and terminations.

Unlawful Discrimination - Classifying or segregating disabled employees or job applicants in such a way that their employment or promotional opportunities are different than those of able-bodied employees is unlawful, as is letting someone else discriminate on your behalf. This means that an employer may not request (or permit) an employment agency, executive recruiter, union, or insurance or other fringe benefits provider to discriminate against applicants or employees.

An employer cannot use employment tests or criteria that tend to screen out disabled applicants unless the test is job-related and there is a business necessity for it. An employer must make certain that a test measures job-related abilities and that the test does not simply reflect the applicant's disability, unless that factor is job-related and is the focus of the test.

Job placement tests or standards also may not have the purpose or effect of discriminating against an employee or applicant who is disabled.

An employer may not discriminate against an applicant or employee because that person is related to or has an association with a disabled person.

An employer cannot refuse to make a reasonable accommodation to assist a disabled employee or applicant unless doing so would cause an undue hardship. Similarly, an employer cannot refuse to hire or promote someone because he or she will require such an accommodation unless the accommodation would cause undue hardship.

Medical Examinations - The use of preemployment medical examinations is prohibited prior to an offer. Employers are permitted to make pre-offer inquiries as to the ability of an applicant to perform job-related functions.

Employers may require physical examination of an applicant after a contingent job offer has been made, but only if:

* All applicants are examined regardless of any disability.

* The results of such examinations are collected and maintained on separate forms and are kept in separate, confidential files.

* Examination results are not used for any purpose prohibited by the ADA.

* Supervisors, managers, and safety/first aid personnel are advised of the disability and of any required restrictions or accommodations that must be made.

* An employer demonstrates that the medical examination is job-related and that there is a business necessity for it.

* An employer also inquires of an applicant whether he or she is able to perform a job-related function, e.g., can lift heavy objects, hear soft sounds, operate complex machinery, etc.

Contingent offers may be withdrawn if the examination reveals that the applicant is unable to perform in the position sought. It is uncertain what obligation an employer may have to accommodate an applicant who is not otherwise qualified for the job for which the offer was made before the assessment revealed the individual's lack of qualification.

The ADA prohibits making a preemployment inquiry concerning whether an applicant has a disability or the nature or severity of a disability. This section would appear to be inconsistent with the Rehabilitation Act and the government contractor's and subcontractor's affirmative action-related obligation to seek such information voluntarily from the applicant.

An employer may not make inquiries of current employees' medical conditions unless such inquiries are job-related and consistent with business necessity. This may bar employer use of post-leave medical examinations that many employers conduct on employees returning to work after an extended medical or other leave, unless the employer shows that the examination is job-related.

Defenses - As noted above, not employing, promoting, etc. a person with a disability is not impermissible where the employer's action is job-related and serves a reasonable business need and where the employer is unable reasonably to accommodate the applicant or employee. The employment of an individual with a disability may not pose a threat to the health or safety of that or other individuals in the workplace.

Infectious and Communicable Diseases - During the last month of debate before passage of the ADA, Congress added and then eliminated a provision that would have permitted businesses employing individuals in food handling positions to transfer such employees if the employees had a communicable or infectious disease of "public health significance." Directed at persons with AIDS or infected with HIV, the provision would have permitted transfers of such persons absent any medical threat to others. But the section further stated that persons thus transferred could not be injured economically by the transfer.

As passed, the ADA addresses infectious and communicable diseases and food handling employees in the following way:

* The ADA directs the Secretary of Health and Human Services to review all infectious and communicable diseases that may be transmitted through handling of food, publish a list of such diseases and the methods by which they are transmitted, and widely disseminate the information. The ADA also permits state, county, or local governments to enact or adopt laws, ordinances, or regulations applicable to food handling employees and intended to protect the public from the dangers posed by the listed infectious or communicable diseases.

* Employers may refuse to hire an applicant or may terminate an employee with a listed disease from a position involving food handling if there is no reasonable accommodation available to that employee.

* The bottom line of this ADA provision is that an employer would not be permitted to act adversely to an employee with an infectious or communicable disease absent recognition by the Secretary of HHS of an actual danger. Under the previous version of the ADA, an employer would have been permitted to remove an employee from a food handling position based merely on fear of contagion.

Drugs in the Workplace - The ADA permits an employer to:

* Fire or refuse to hire an individual who "is a current user of illegal drugs." There is an open question concerning what constitutes "current" drug use; the Act is silent on the issue.

* Ban the use of alcohol or illegal drugs in the workplace. * Require that employees not be under the influence of alcohol or illegal drugs in the workplace.

* Require that employees conform to the requirements of the Drug Free Workplace Act (41 U.S.C. [section] 701 et seq.).

* Hold alcohol- or drug-addicted employees to the same standards as all other employees, even if their unsatisfactory job performance is caused by their drug addiction or alcoholism.

* Test employees for drug use (a drug test will not be considered a medical examination).

Persons addicted to alcohol are protected under the ADA to the extent that they are otherwise qualified to perform. As noted above, however, their employment may be adversely affected if they violate work rules prohibiting use of alcohol at the workplace.

Protected as "an individual with a disability" is a person who has completed a drug rehabilitation program and is not a current user of drugs, is currently undergoing a drug rehabilitation program but no longer is a current user of drugs, or is perceived as a drug user but in fact is not engaging in drug use. An individual who currently engages in the use of illegal drugs may not be denied health services or services provided in connection with drug rehabilitation on the basis of current use if the individual otherwise is entitled to such services.

The ADA also states that, where applicable, employers may require that their employees comply with Department of Defense, Nuclear Regulatory Commission, and Department of Transportation drug policy and testing regulations.

The ADA defines drugs to include substances listed in Schedules I through V of Section 202 of the Controlled Substances Act. The term excludes substances taken under the direction of a licensed health professional.

The ADA amends the Rehabilitation Act of 1973 to make its provisions addressing drug use consistent with those of the ADA. Unlike the ADA employment provisions, which do not become effective until 1992 (1994 for smaller companies), the amendments to the Rehabilitation Act became effective on signing of the Act.

Posting of Notices - The ADA requires the posting of notices pursuant to Section 711 of the Civil Rights Act of 1964, as amended, 42 U.S.C. [section] 2000e-10 ("Title VII").

The Equal Employment Opportunity Commission ("EEOC") will be responsible for developing the appropriate poster.

Enforcement - The ADA adopts the Title VII enforcement and remedial scheme. Of concern to Congress as the ADA was under consideration was congressional action on the Civil Rights Act of 1990 (CRA). That act would have altered much of the remedial and enforcement mechanism of Title VII, permitting, for example, jury trials and recovery of compensatory and punitive damages. It also would have enlarged the statute of limitations (from 180 or 300 days to two years). Although President Bush vetoed the CRA, its sponsors have indicated that they will introduce a new bill next year that will contain many, if not all, of the changes to the enforcement mechanism and rules of Title VII and, hence, the ADA.

Effective Dates - For employers with 25 or more employees, the effective date is July 26, 1992; for employers with 15 or more employees, July 26, 1994. In the meantime, employers should:

* Monitor the regulations being developed by the EEOC. The EEOC has indicated its interest in having all affected parties, including employers, participate in the process by which the regulations are developed.

* Review job descriptions. Under the ADA, an employer's judgment as to what functions of a job are essential are to be given consideration in determining whether an individual is qualified to perform the job. Similarly, an employer's written job description is to be given consideration if the description exists before applicants are sought for the position at issue.

* Determine accessibility to the workplace. Employers should assess whether there are barriers to applicant access to the workplace or whether there may be impediments facing prospective or current employees to equal access within the workplace.

* Employers also should review current policies concerning employee accommodation. As noted, the ADA includes a broad duty to accommodate. For many employers, this may require revision of policies affecting employee transfer, part-time work, job restructuring, modification of equipment, etc. In performing the review, employers also should determine the costs associated with accommodation, as the ADA provides that the cost of a required accommodation is a factor to be considered when determining whether the employer should be required to implement the accommodation.

Miscellaneous Provisions

Preemption - The ADA does not preempt other federal, state, or call laws providing equal or greater protection to the disabled; prohibit employers from implementing policies that limit or prohibit smoking in the workplace; or otherwise address whether a person alleging an addiction to nicotine may be able to state a claim under the Act.

Insurance - The ADA does not prohibit insurers, providers of health care, or benefits administrators from underwriting, classifying, or administering risks consistent with state law. Nor does the ADA prohibit a provider from establishing, sponsoring, observing, or administering the terms of a bona fide benefit plan based on underwriting, classifying, or administering risks consistent with state law. Finally, the ADA does not prohibit a provider from establishing, sponsoring, observing, or administering the terms of a bona fide benefit plan that is not subject to state law. The overriding caveat to all of this is that such plans may not be a subterfuge for purposes of evading the ADA.

Retaliation - The ADA prohibits an employer from retaliating against an individual who opposes a practice made unlawful by the ADA or participates in a proceeding brought under the ADA. The ADA also prohibits interference with or coercion of an individual exercising rights under the Act.