Disability Resource Group
FACTS AN EMPLOYER SHOULD KNOW ABOUT THE AMERICANS WITH DISABILITIES ACT
1. Your recruiting methods should not exclude any disability group. For example, only advertising on a telephone job line eliminates people with hearing impairments. If you do use a job line, you should also have a way for people with hearing loss to get fax or on-line information about available jobs.
2. The job application cannot ask any questions that lead to the conclusion that a disability is present in the applicant. Questions such as: “Have you ever seen a psychiatrist?” “Were you hospitalized last year, and if so why?” “Would you need any accommodations to do this job?” Are not legal questions for applications.
3. In job announcements, applicants should be informed that they may ask for accommodations to obtain or fill out the application. An applicant should not have to bring an assistant with her to fill out the application.
4. All requirements for a job should be directly related to the job. For example, it is a violation of the ADA to ask all job applicants both office and factory workers, to prove that they can comfortably lift fifty pounds. Likewise, requiring a filing clerk to have a driver’s license when no driving except for going to and from work, is required is also a violation.
5. When considering an applicant, the employer should decide if the applicant can perform the ESSENTIAL FUNCTIONS of the job whether she needs accommodations or not. The essential functions are those activities of the job for which it was created. The activities that others perform in this job help also to determine what are essential job functions. The purpose of the job, not how the job is done by others, is the important piece to focus on. For example, the essential function of a stocker in a grocery store is putting goods on the shelf. The essential function is not carrying the goods from the back to the shelf. So, a stocker could be a person who can lift without any problem, but who would need a cart if she had to carry items a long distance.
6. The employer should not talk with the applicant about the disability or about accommodations during the hiring process until a job offer has been made. The employer can ask, “Can you perform the essential duties of this job if you have the right accommodations?”
7. Once a job offer has been made, the employer and employee and any experts they choose to bring into the discussion, can work out together the accommodations needed for the applicant to perform the job. They can also figure out who will pay for the accommodations. The company’s ability to pay for the accommodations should be decided at a high level not at the supervisory level. Experts should help the applicant and supervisor figure out which accommodations would actually work for the employee.
8. Some REASONABLE ACCOMMODATIONS in the work place include: flexible hours, adapted equipment, physical modifications to workspace, provision of assistants such as readers or sign language interpreters, sharing tasks with other employees, more time to complete tasks, written as well as verbal instructions, stronger lighting, specialized software, etc.
9. An applicant or employee does not have to disclose anything about her disability unless she is seeking some type of accommodation. Once an employee asks for an accommodation, the employer has the right to ask for medical information from a doctor that documents the specific disability and makes work related recommendations. For example, if an employee has diabetes that is more difficult to manage than five years ago when she was hired, and thus needs breaks for insulin injections, the employee should get a letter from her doctor stating that she has diabetes. This letter should also say that the employee needs to take insulin breaks every three hours to control her condition.
9. The applicant or employee cannot be penalized for not revealing the disability prior to the request for an accommodation.
10. Employers have a right to forty hours a week from all employees with or without disabilities. If the employee cannot do her job even with appropriate accommodations, the employee can be terminated without violating the ADA. The employer should always call in experts and try different accommodations before deciding that dismissal is the answer.
11. If accommodations cannot be found, the employee with a disability should be assisted to find another job in the organization. The employer should go through the accommodation process for these new positions. The employee is paid based on the job she does, not the job she originally did.
12. The ADA is not an affirmative action law. It does not require employers to hire people with disabilities. The ADA does say that it is illegal to refuse to hire, to refuse to promote, or to fire an employee just because of the presence of a disability. The three reasons under the ADA, for not employing a person with a disability who is qualified for the job are: UNDUE HARDSHIP, (accommodations are too expensive or too difficult to put into place) FUNDAMENTALLY ALTER THE NATURE OF THE WORK, (accommodations needed would totally change how things are done) DIRECT THREAT, (the employee’s disability would most probably cause harm to others). For more information, training, or consultation contact:
