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The ‘new’ ADA: How to handle employee disabilities

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources

The complex Americans with Disabilities Act (ADA) gives qualified disabled people special rights in the workplace. When Congress expanded the law in 2009, it broadened the circle of people eligible for ADA rights even wider. That has led to a spike in people filing ADA-related legal claims.

Here’s what managers need to know about the ADA:

Who is protected?

The ADA covers more than just people who are deaf, blind or in wheelchairs. Technically, people are “disabled” under the ADA if they have a physical or mental impairment that “substantially limits one or more major life activities,” such as sleeping, standing or working.

Depending on the person’s condition, that can include ailments such as epilepsy, diabetes or arthritis, plus mental impairments, such as major depression and bipolar disorder. The ADA protects people with a history of such impairments, such as an employee whose cancer is in remission.

In 2009, the ADA Amendments Act broadened the definition of “disability” even further, thus allowing more employees to request accommodations and file lawsuits.

The law also says that if an employer treats a person as being disabled, then that person earns protection under the law, even if he or she wouldn’t otherwise qualify. That’s why, when faced with an employee or applicant who may be disabled, it’s important for managers to talk with HR about how to respond.

What are you required to do?

Managers must make sure that people with disabilities have an equal access to jobs, compensation and promotions. The ADA also requires employers to prevent harassment because of a person’s disability.

You must keep confidential any medical information about applicants or employees.

Can you ask about disabilities?

The ADA says employers can’t ask questions about a person’s disability during the application process. That includes direct questions about the impairment, questions about medications they take or questions about the person’s workers’ comp history.

You can, however, make business-based inquiries, such as:

  • Whether they have the right experience, training and skills.
  • Whether they can satisfy the job’s essential functions.
  • How much time off the applicant took in past jobs (but not why).

After making a job offer, you can then ask any disability-related questions and conduct medical exams, as long as you do this for everyone in that same job category.

You can withdraw a job offer if it’s clear after the medical inquiry that the person can’t perform the job’s essential functions with or without a “reasonable accommodation.”

What’s a ‘reasonable accommodation’?

If an employee is a qualified disabled person, you must make “reasonable accommodations” to help him or her perform the job’s essential functions.

For examples, a diabetic employee may need regular breaks to eat properly and monitor blood levels, or a person with cancer may need leave to have radiation treatments.

When potentially disabled employees approach you with accommodation requests, they set in motion the ADA’s “interactive process.” It’s important to be able to identify such requests as possible ADA-covered requests and then alert HR.

Requests are unreasonable if they cause the organization an “undue hardship,” meaning it’s too difficult or too expensive to provide.

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