ADA's effect on the hiring process.
First, employers must meet requirements regarding accessibility to persons with disabilities. The requirements fall into three categories:
* private businesses that serve the public must remove architectural, communication and transportation barriers in existing facilities by January 26, 1992, where such removal is readily achievable;
* all private businesses, whether or not they serve the public, must ensure that newly constructed buildings are readily accessible to the disabled if the building is to be occupied after January 26, 1993;
* all private businesses, whether or not they serve the public, that make any improvements to existing structures must, to the maximum extent feasible, make the improved portion accessible to disabled persons.
Common accessibility improvements include modifications to restrooms, stairways, elevators (braille panels and sound tones), parking lots (curb cuts and reserved spaces), drinking fountains, pay telephones, door swings and signage.
Companies undertaking improvements or new construction and those with facilities that serve the public are directly affected. Remember that the definition of disability includes more than the wheelchair-bound.
Once an applicant gets in the door, the act affects the interviewing and hiring process. Employers are not permitted to ask directly or indirectly specific questions about any disabilities. Obviously, employment applications with checklists of diseases and disabilities should be discarded. Also, asking for a driver's license for identification purposes would violate the act because disabled applicants would not have one. A driver's license can be required, however, if driving is an "essential function" of the particular job.
The act is very clear in that employers are not to require preemployment physical examinations. A physical can be administered for some purposes, insurance or safety, for example, but only after an offer of employment has been made. Following the examination, the offer cannot be withdrawn as a result of a disability except for reasons discussed in Part 2 of this series.
For instance, if the exam reveals that the offeree could not perform the essential functions of a job, the offer could be withdrawn. An offer cannot be withdrawn because the employer's health insurance premiums would increase.
An employer who does require post-offer physical exams cannot discriminate. He must require the same exam of all offerees.
Results of the exam should be in writing and must be kept confidential. This means they should be kept separate from the regular personnel files so that office or clerical personnel would not have access to them.
For security and safety-related employees, such as those in transportation jobs, an employer may condition offers on the basis of medical exams. However, an employer may not use the results to screen out disabled but otherwise qualified applicants.
As with the "essential functions" analysis, the employer's determination is not final. An employee may challenge any determination by an employer or by a physician appointed by the employer.
The medical exam procedure will be fraught with peril at least until standards and procedures have been worked out in actual cases. Unless physical exams are absolutely necessary, employers should probably avoid them altogether.
An employer who fails to hire an applicant because of a disability violates the act as much as an employer who discharges an employee because of a disability. An employer should maintain hiring records to preserve documentary evidence of its policies. This means keeping the files even of those applicants who were rejected. But keep them confidential.
This article is for general information purposes and is not to be considered legal advice. Employers should consult an attorney regarding specific issues under ADA.
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|Title Annotation:||Americans with Disabilities Act|
|Author:||Kinsella, Daniel V.|
|Date:||Mar 1, 1992|
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