HR Summer School has officially begun. As promised, over the next several weeks, we’ll be reviewing the three employment laws that are the most difficult to apply–the Americans With Disabilities Act (ADA), the Fair Labor Standards Act (FLSA), and the Family Medical Leave Act (FMLA). For details on the topics to be covered, see the Course Catalog.
ADA 101, part of the HR Summer School’s Back-to-Basics Program, reviews who is covered by the Americans With Disabilities Act.
Part 1. Employers Covered By the ADA.
The easiest way to put it is this: every employer is subject to the ADA’s regulations except the federal government, federal contractors, and corporations owned by the United States; Indian tribes; and bona fide membership clubs. The federal government agencies are covered, instead, by the Rehabilitation Act of 1973.
Part 2. Employees Covered by the ADA.
A qualified individual with a disability is protected under the ADA.
A. Qualified. A disabled individual is Qualified where she can:
1. “Perform the essential functions of the job.”
· The essential functions of the job are the fundamental duties actually performed by incumbents.
· The first step in determining whether a job requirement is essential is whether the employer actually requires all employees in that position to perform the allegedly essential function.
· To be considered qualified, a disabled individual must meet the requisite skill, education, experience, and other job-related requirements of the position.
· Job descriptions are relevant but not conclusive in determining the essential functions of the job.
2. “with or without a reasonable accommodation”
· To be covered in ADA 103
B. “With a Disability.” A disability is:
1. A physical or mental impairment
A mental impairment under the ADA is “any mental or psychological disorder, such as emotional or mental illness.” Major depression, bipolar disorder, schizophrenia, and personality disorders are covered conditions. Most mental disorders contained in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders are covered. Certain anxiety disorders also may constitute an impairment. Job stress generally is not considered to constitute a mental impairment under the ADA.
A disability does not include: (1) The current use of illegal drugs or alcohol at the workplace; (2) Homosexuality, Bisexuality, Transvestitism; or Pedophilia; (3) Compulsive gambling; or (4) Kleptomania
2. that substantially limits
Whether an individual is substantially limited in a major life activity turns on the nature, severity, and duration of the impairment. The individual must be significantly restricted in a class or broad range of jobs.
Temporary impairments are not covered. If a mental impairment is only temporary and non-chronic is not considered to “substantially limit” a major life activity. But chronic or episodic conditions that are substantially limiting during their recurrence may qualify for coverage
The courts must consider whether the individual can correct or “mitigate” the disability. For example, the Supreme Court held that the plaintiff’s vision disorder treated with corrective lenses was not a disability under the ADA.
3. one or more major life activities.
A major life activity is a function such as “caring for oneself, performing manual tasks, walking, seeing hearing, speaking, breathing, learning, and working. Mental and emotional processes such as thinking, concentrating, and interacting with others are major life activities.”
4. A disability is also said to exist when an employee has a record of such an impairment.
Here, the individual does not have a disability as it is defined above. Instead, they have a history of having a disability and, because of that history, the employer considers him or her to be disabled.
An example of this would include an individual who has a history of cancer but the cancer is in remission. If her employer does not promote her because he’s worried that her cancer may return, she would be covered under the ADA even though she is not “disabled” in the traditional sense.
5. And a disability is also said to exist when an employee is regarded as having such an impairment.
Another non-traditional disability—the employee is not actually disabled at all. Unlike in the “record of” disability case, the employee may never have had a disability. But, for some reason, the employer mistakenly believes the employee is disabled and makes an employment decision based on that mistaken belief.
An example of this would be a job applicant with a broken leg who comes to the interview in a wheelchair. Usually, a broken leg is too temporary to qualify as a disability. But the interviewer assumes (wrongly) that the candidate is permanently wheelchair-bound. If the candidate isn’t hired because of that incorrect assumption, he would be covered under the ADA.
C. Factors that Disqualify Individuals from Employment
1. Attendance. Regular and consistent attendance is often an essential function of a job. [This is why job descriptions should reference attendance requirements where appropriate].
2. Employee Misconduct. An employer may discipline or terminate an employee for misconduct, even if that misconduct was the result of a disability.
3. Direct Threat. An employer can lawfully exclude an employee from employment if he or she poses a significant risk of substantial harm to health or safety that cannot be eliminated or reduced by a reasonable accommodation. Significant risk must be high, not just a slightly increased, risk. A direct threat is not posed automatically because he or she operates machinery and takes medication that may decrease concentration. This must be determined on a case-by-case basis.