ADA Protection

ADA protection is only applicable to those under various circumstances. Title I of the Americans with Disabilities Act of 1990 (ADA) applies exclusively to private employers with organizations of fifteen (15) or more employees; as well as all state and local government administrations, employment agencies, and labor unions. ADA rule incorporation varies state-by-state. In addition to federal ADA rules, some states like Washington State, incorporate international human rights laws as part of the legal prohibitions to protection individuals with disabilities from discrimination.

Enacted July 26, 1990 the Americans with Disabilities Act (ADA) was signed into law as legislative law for rights assurance of reasonable accommodation and protection against discrimination on basis of disability in all employment, private and public settings. A comprehensive civil rights law, the ADA prohibits discrimination of persons with disabilities, and mandates public accommodation in all commercial facilities, employment environments, transportation infrastructure, and telecommunications infrastructure. Definition of a person with a disability is someone who requires reasonable accommodation for reasons of physical or mental impairment. The ADA covers:

  • Title I Employment.
  • Title II State and local government programs.
  • Title III Places of public accommodation.
  • Title IV Telecommunications.
  • Title V Attendant issues such as retaliation and attorney representation.

ADA: Disabilities & Your Rights as an Employee

Title I employment rules as defined by the ADA, is that a person must meet the definition of disability, as well as be qualified for a job. To be eligible for a job role, education, experience, skill and other standard job-related requirements for the position are considered. To be qualified for hire under ADA rules, a candidate must be able to perform the essential functions of the job, with or without reasonable accommodation. All employment practices are covered by Title I Employment Rights provisions including: job application, recruitment, hiring, training, promotions, compensation, employee benefits, company functions, leave, layoffs, termination, and advertising as conditions and privileges of employment.

ADA: Disabilities and Protections

Any person with a physical or mental impairment that substantially limits a major life activity is considered disabled and eligible for protections under the ADA. ADA protections also cover persons with a history of a disability; or those having employers believing they have a disability, even where no actual disability exists. A disability must be considered a substantial rather than a minor impairment, to be covered by ADA rules.

Reasonable Accommodation

ADA legal rights are comprehensive in respect to protections from discrimination and access to reasonable accommodations. Reasonable accommodation may involve:

  • Modified or flexible work schedules
  • Changes to employee policies and training manuals
  • Installing new or modified equipment
  • Creating a more accessible environment for people with disabilities
  • Restructuring of a job
  • Reassignment to another position
  • Providing an interpreter

Adjustments to a workplace considered “reasonable” are those that assist a worker with a disability in performing the job. The stipulation of "reasonable" accommodation in ADA law, does not intended to be any measure of adjustment that would cause undue hardship or expense to an employer or property owner.

Medical Examinations and Questions About Disabilities

The ADA prohibits employers from requesting new hires from mandated medical examination prior to offering a job. However, job offers can be conditional based on a medical examination if all employees in the role are required to do so. Employers have the right to exclude candidates based on the results of a pre-employment examination. Medical examinations can be requested on a voluntary basis. The can also provide medical information for a workers' compensation claim. Medical examinations on file with employers must be kept confidential, and maintained in separate files.

What to Do if You Have Been Discriminated Against

To file an EEOC complaint if a person has been discriminated against based on real or perceived disability in the employment setting, claim must be filed within one hundred eighty (180) days of the alleged violation. In jurisdictions where laws provide for protection from discrimination on basis of disability, claimants have up to three hundred (300) days to file. Call or visit a local EEOC field office for more information about filing a discrimination claim.

If the EEOC or other government agency concludes in an investigation that discrimination allegations are true, a claimant is entitled to compensatory remedies. Compensation for damages from discriminatory violations may include hire, promotion, reinstatement, payment of back wages, reasonable accommodation and attorneys’ fees.

Additional ADA Assistance

The EEOC provides a technical assistance program to promote ADA compliance by employers, and to assist employees with disabilities to better understand their ADA rights. A Technical Assistance Manual published by the EEOC, offers a guide to practical application of ADA regulations to employment activities and specific job functions. The EEOC also serves in oversight of dispute mediation and ADA rule enforcement with employers when allegations of discrimination are filed by an employee.

Getting a Free Initial Claim Assessment

Employment discrimination claims nearly always involve power differentials. Disparity in resources between the abusing party and the victim may pose challenge in terms of time and ability to file a lawsuit. Consult a legal clinic to obtain professional counsel and referrals for a free initial claim assessment, and the process to demanding fair treatment.

Employee Leave Protection

Leave is a form of reasonable accommodation, one that enables an employee to take time off from work to take care for themselves, and then return to work and perform the essential functions of their job. Leave on a short-term, long-term, or even an hourly basis will be the only effective accommodation for the person with a disability. Under the ADA an employer must provide full consideration to the person who is requesting a reasonable leave accommodation; and take the steps following final decision to officially document the reasonable accommodation in a conditional agreement, including affirmation of an employee’s right to retain their position.

The Family and Medical Leave Act of 1993 (FMLA) allows eligible employees to take up to 12 weeks of unpaid, job-protected leave annually. Employees are eligible for leave based on specified circumstance of:

  • Incapacity due to pregnancy, prenatal medical care or child birth;
  • Care of a child after birth, or placement for adoption or foster care;
  • Care of a spouse, son, daughter or parent, who has a serious health condition; or
  • A serious health condition that makes it impossible to perform the employee’s job.

Overlapping Coverage Between the ADA and the FMLA

The FMLA enacted in 1993 by the United States Congress as a provision to protect employees taking leave from discrimination and termination. FMLA is designed to allow for employees manage family and medical problems with leave, yet without additional cost to an employer. FMLA) 29 U.S.C. 2601 rules are the primary federal legislation ensuring health insurance benefits during a legitimate leave from employment. 

In January 2009, new military family leave entitlements were integrated to the existing legislation. Other federal laws protecting disabled employees requesting a family or medical leave entitled to rights provided for under the FMLA, ADA, Title VII of the Civil Rights Act of 1964, and the Pregnancy Discrimination Act of 1978. Title VII outlines protected categories of persons, making it illegal to discriminate on basis of sex, including matters of pregnancy discrimination.

FMLA Certification Inquiries and the ADA

FMLA certification inquiries are permissible under the ADA. FMLA laws require employers to post notices for employees explaining family leave rights. Standard FMLA leave requirements oblige an employee to give his or her employer 30 days' notice of intention to take FMLA leave, and the reason for the leave. Unexpected medical emergency FMLA leave without prior notice requests must also comply with notice and certification requirements to take advantage of your rights under the law.

A Comparison of ADA and FMLA Leave

Under FMLA, employee leave is unpaid. Employees continue to have rights to health-care benefits as if still actively employed. FMLA also provides protection of employees taking leave from discrimination, or discharge, and allows for claims to be levied against an employer for lost wages and other damages associated with violations of those rights People with a qualifying form of disability may be entitled to more than the number of weeks of unpaid or paid leave available under the FMLA as a form of reasonable accommodation. ADA requests may also be accompanied by part-time leave. FMLA allows for intermittent leaves. Employers should review ADA and FMLA rule stipulations. If the leave will impose an 'undue hardship,' on the employer's business, reassignment, voluntary transfer, or termination also may be result.

Keeping an Employee on the Job

Under the ADA, an employer is mandated to provide an employee with disabilities a reasonable accommodation where possible. Keeping employees on the jobs is an option. The ADA provides for reasonable accommodation other than requested leave, if determined that the accommodation will be effective. If the employee with disabilities is eligible for FMLA leave, and has given notice or has an emergency serious health condition preventing them from performing essential job functions, the employee has the right to take leave.

The EEOC provides a technical assistance program to promote ADA compliance by employers, and to assist employees with disabilities to better understand their ADA rights. A Technical Assistance Manual published by the EEOC, offers a guide to practical application of ADA regulations to employment activities and specific job functions. The EEOC also serves in oversight of dispute mediation and ADA rule enforcement with employers when allegations of discrimination are filed by an employee.

Returning an Employee with Disabilities to Work

According to both ADA and FMLA, disabled employees returning to work after a leave may be reasonably accommodated by an employer with reassignment if pay and benefits are equal to previous compensation and conditions of employment. The ADA mandates employer health insurance coverage for an employee with disabilities must continue after leave or reassignment on a part-time basis. However, an employer is obliged only if the same coverage is given for other employees with the same leave or part-time status. FMLA obliges employers to maintaining employee group health insurance plan coverage after leave, providing the employee has met their premiums. The same FMLA criteria apply to life insurance and disability coverage. 

What does not constitute as a disability

The ADA explicitly excludes certain conditions from being disabilities. What does not constitute a disability: exhibitionism, voyeurism, homosexuality, bisexuality, transvestism, transsexualism, pedophilia, gender identity disorders not resulting from physical impairments. Sexual behavior disorders, compulsive gambling, kleptomania, pyromania and psychoactive substance use disorders resulting from current illegal use of drugs do not fall under consideration for ADA protections. Temporary, non-chronic impairments that do not last for a long time and that have little or no long-term impact are normally not considered disabilities under ADA law.

Ten Most Common Disabilities

The ten (10) most common ADA disability claims in rank order are:

  1. Back or spinal injury – 19.1 percent.
  2. Psychiatric and mental impairments – 11.7 percent.
  3. Neurological impairments – 11.7 percent.
  4. Extremity impairments – 8.1 percent.
  5. Heart impairments – 4.4 percent.
  6. Substance abuse – 3.5 percent.
  7. Diabetes – 3.5 percent.
  8. Hearing impairments – 3 percent. 
  9. Vision impairments – 2.8 percent.
  10. Blood disorders –2.6 percent.

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