Disability

The Americans with Disabilities Act (the “ADA”) protects employees from discrimination based on disability.

• Which disabilities are covered by the ADA?
• What is a “major life activity”?
• When does a disability “substantially limit” a major life activity?
• Must the employee show that he can still perform the job?
• “Reasonable accommodation”
• Expensive accommodations
• Responding to a claim of discrimination
• What is “harassment”?

Which disabilities are covered by the ADA?

Not all disabilities are covered by the ADA. For a disability to be covered, an employee must show that he suffers from a “physical or mental impairment” that “substantially limits” a “major life activity.”

What is a “major life activity”?

A “major life activity” is an important activity that the employee might do on a regular basis, such as learning, thinking, seeing, walking, breathing, or procreating.

When does a disability “substantially limit” a major life activity?

A disability is substantially limiting if it prevents the employee from being able to do the major life activity on a regular basis. If a disability is only temporary (like a broken leg), then it probably isn’t covered. Also, if a corrective device (like contact lenses) or medication corrects the disability, the disability might not be covered.

Must the employee show that he can still perform the job?

To be covered by disability discrimination laws, the employee must show that the disability does not prevent performance of the “essential functions” of the job. “Essential functions” normally means all of the important duties of the job, but not the duties that are only secondary. For example, typing at a certain speed is almost certainly an essential function of a secretary’s job, but having to lift a heavy box of typing paper from a file cabinet once every month would probably not be an essential function.

“Reasonable accommodation”

An employer must give an employee a “reasonable accommodation” so that the employee can perform the job.

A “reasonable accommodation” is a change or modification to the job that makes it easier for the worker to do the job with the disability. If the employee can perform the basic duties of the job with that “reasonable accommodation,” he is protected from discrimination based on disability. Examples of reasonable accommodations include:

Modifications to equipment, workspace or materials;

Changes in work schedules that do not affect the employee’s ability to do the job;

Alterations to the office that make all areas accessible to a wheelchair user;

The hiring of a reader or interpreter to assist an employee who is deaf or hard of hearing.

Expensive accommodations

You need not make an accommodation that would create an “undue hardship” for your business. Whether something is an undue hardship will depend on your company’s size and wealth. Large companies have a harder time proving that accommodations are an “undue hardship.”

If the change the employee requests is too drastic for your business, it will not be considered reasonable. For example, if your employee requests to start an eight-hour shift three hours late every day because his disability makes it difficult for him to wake up, this might not be a reasonable accommodation. On the other hand, if you are asked to install “voice recognition” software to allow an employee to perform the job, that request may be reasonable.