(For other stories in this series, you can read our posts about best practices to avoid age discrimination and New York's new laws involving family and medical leave.)
While many employers are not familiar with the Americans with Disabilities Act as providing accommodation for third parties with disabilities, many fail to recognize that the law also provides employee protection. The law, as amended by the ADA Amendments Act, protects employees from job discrimination based on (1) physical or mental disability, (2) recorded history of disability or impairment or (3) a substantial impairment that limits a major life activity (defined in the law as hearing, seeing, speaking, walking, breathing and many other manual tasks), which is meant to be defined broadly.
Having a disability covers only half of the standard. Employees making a discrimination claim based upon ADA must also be qualified to perform the essential functions or duties of the job up to the employer's requirements for the job, and be able to perform the essential functions of the job with or without reasonable accommodation.
"Reasonable accommodation" means actions taken which permit an employee, prospective employee or member with a disability to perform in a reasonable manner the activities involved in the job or occupation sought or held. Examples of reasonable accommodations include:
- modified equipment or devices;
- adjusted work schedules;
- modified training and policies;
- support services for people with impaired vision or hearing; and
- making the workplace readily accessible to and usable.
Depending upon the industry your business is engaged, ADA issues may arise. For example, the food services industry requires high standards of cleanliness and prohibits some workers with communicable diseases that can be transmitted through food. While ADA prohibits businesses from asking applicants about medical issues and requiring a medical examination, after a business makes a conditional job offer, businesses may then ask about an applicant's health and require a medical exam, so long as the business treats all applicants in the same job category the same. But keep in mind that this example highlights the fact that employers can only inquire about a worker's health if the inquiry is related to the job and necessary for the conduct of the business.
Every business should establish an ADA policy that is known to all employees and job applicants. This policy can be adopted with guidance from the Equal Employment Opportunity Commission, which provides a great guide for small businesses, by looking at sample policies or by consulting an attorney that can create policies tailor made for your business.
*Gene Berardelli may be contacted at: GeneBerardelli@ipglegal.com.
Gene is a New York street-smart attorney with an extreme passion for success. Gene specializes in litigation, arbitration and general corporate law for New York-based and international clients. He, also, is the host of a popular New York talk radio program.