Employers

Employers with 15 or more employees must comply with Title I of the ADA, the Federal civil rights law for people with disabilities. Both full-time and part-time employees are counted in determining whether a public accommodation/private business is covered by Title I.  All state and local governments no matter how many employees they have - must not discriminate on the basis of disability in their hiring and employment practices and must provide reasonable accommodation to qualified applicants and employees with disabilities.

Many states have laws or ordinances comparable to Title I to not discriminate against applicants or employees with disabilities. Many of these state laws and ordinances apply even when an employer has fewer than 15 employees, which differs from the federal requirement. For example, both Massachusetts’ law and New Hampshire's law apply to small businesses with six or more employees. Vermont’s law and Maine’s law both apply to employers with one or more employees. Connecticut’s law applies to employers with three or more employees.

Below are sample ADA questions from an employer.

Question: 

I have PTSD and cannot wear a mask. My employer requires a mask to be worn at all times and placed me on leave until I could get documentation from my doctor that I cannot wear a mask due my ADA disability. Upon my return I was demoted to a lesser paying position with a schedule that conflicts with my family obligations. Is this legal?

Answer: 

The employer has the right to follow the Centers for Disease Control (CDC) or the state’s mandates for wearing masks. Most states have exceptions for people with disabilities with certain medical conditions. However, if excusing an employee from wearing a mask would put the health and safety of other employees or customers at risk, an employer does not have to eliminate the face mask requirement even for people with disabilities. An employer would have to consider other reasonable accommodations that would allow the employee with a disability to complete their essential job functions. Customer and employee interaction is likely an essential job function, which will make it tough to find an agreeable reasonable accommodation. Some possible accommodations include: relocated to a different office where there is less interaction with the public or other employees, work remotely, or transfer to a vacant position (accommodation of last resort}. The Job Accommodation Network (JAN) has helpful ideas on reasonable accommodations and COVID-19. https://askjan.org/topics/COVID-19.cfm

COVID-19

Employers Frequently Asked Questions

  • What is the process to request a reasonable accommodation?

    When an individual decides to request an accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. There is no need to mention the ADA or use the phrase “reasonable accommodation.”

    Requests for reasonable accommodation do not have to be in writing and can be requested in a face-to-face conversation or using any other method of communication. Employers may choose to write a memo or letter confirming the employee’s request or may ask the employee to fill out a form or submit the request in written form.  However, the employee may want to put the request in writing even if the employer does not require it. Sometimes it is useful to have a paper trail in case there is a dispute about whether or when the accommodation was requested.

    While an employer cannot ignore the initial request, this request does not necessarily mean that the employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between the employee and the employer. In some instances, before addressing the merits of the accommodation request, the employer needs to determine if the individual's medical condition meets the ADA definition of "disability," a prerequisite for the individual to be entitled to a reasonable accommodation.

  • What practices and activities are covered by the employment nondiscrimination requirements?

    The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.

  • As long as I meet the ADA definition of disability, am I covered by Title I?

    Not necessarily. Because Title I is about employment, a person must meet the definition of disability and must also be qualified for the job. There are two components to being qualified. First, you need to have the skill, experience, education, and other job-related requirements for the position. For example, it’s legal for an employer to require that a person applying for the job of a foreign language translator be able to translate a foreign language.

    The other component of being qualified, in terms of employment, is that you must be able to perform the essential functions of the job, with or without reasonable accommodation. In other words, getting a reasonable accommodation could make you qualified for the job. For example, a person who is deaf may be qualified to the perform the essential functions of a customer service representative once s/he receives the opportunity to use a video relay service and specialized computer software as a reasonable accommodation.

  • Does the ADA require that an applicant or employee with a disability be qualified for the position?

    Yes. The ADA defines qualified to mean a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation. Requiring the ability to perform "essential" functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.

  • What are the “essential functions” of a job?

    Essential functions are the basic job duties.

    ADA Regulations say that the following things should be taken into consideration when determining whether a job function is essential:

    • The employer’s judgment about which functions are essential;
    • Job descriptions that were written before a job was posted;
    • The amount of time spent performing the function;
    • The consequences of not requiring the person to perform the function;
    • The terms of a collective bargaining agreement; and
    • The work experience of others who have had, or currently hold, the same or similar position.
  • What is "reasonable accommodation"?

    Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

  • Can an employer be required to reallocate an essential function of a job to another employee as a reasonable accommodation?

    No. An employer is not required to reallocate essential functions of a job as a reasonable accommodation.

  • What are my employer’s obligations after I return from medical leave? What kind of documentation can the employer ask for when I return from medical leave?

    An employee with a disability who has been granted medical leave under the ADA may return to the same job unless the employer demonstrates that holding the job open would cause undue hardship to the business or organization.  If an employer has the reasonable belief that an employee will be unable to continue performing essential job functions, or will pose a significant risk to the health or safety of him/herself or other employees due to a medical condition, the employer may make disability-related inquiries or require the employee to have a medical examination. Any inquiry or examination must be limited to what is needed to assess the employee's ability to work. The employer may not use the employee's leave as a justification for making unrelated inquiries or requiring an unrelated medical examination.

  • If an employee’s disability causes violation of a conduct rule, may the employer discipline the individual?

    Yes, if the conduct rule is job-related and consistent with business necessity and other employees are held to the same standard. The ADA does not protect employees from the consequences of violating conduct requirements even where the conduct is caused by the disability.

  • Is testing for the illegal use of drugs permissible under the ADA?

    Yes. A test for the illegal use of drugs is not considered a medical examination under the ADA; therefore, employers may conduct such testing of applicants or employees and make employment decisions based on the results. The ADA does not encourage, prohibit, or authorize drug tests.

    If the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record.

     

  • How do I file an Employment (Title 1) ADA complaint with the Equal Employment Opportunity Commission?

    Complaints concerning discrimination in employment, often referred to as Title I complaints, should be addressed by the U.S. Equal Employment Opportunity Commission (EEOC) and/or the agency responsible for enforcing state laws against employment discrimination.  The EEOC process for filing a charge of employment discrimination may be found at: https://www.eeoc.gov/how-file-charge-employment-discrimination.

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