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Employment and the ADAAs long as I meet the ADA definition of disability, am Icovered by Title I?Not necessarily. Because Title I is about employment, a person must meetthe definition of disability and must also be qualified for the job. There aretwo 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 forthe job of a foreign language translator be able to translate a foreignlanguage.The other component of being qualified, in terms of employment, is thatyou must be able to perform the essential functions of the job, with orwithout reasonable accommodation. In other words, getting a reasonableaccommodation could make you qualified for the job. For example, a personwho is deaf may be qualified to the perform the essential functions of acustomer service representative once s/he receives the opportunity to use avideo relay service and specialized computer software as a reasonableaccommodation.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 intoconsideration 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 thefunction; The terms of a collective bargaining agreement; and The work experience of others who have had, or currently hold, thesame or similar positions.ADA National Network5Disability Law Handbook

Are all employers covered by Title I of the ADA?No. Title I of the ADA only applies to private employers with 15 or moreemployees, all state and local governments, employment agencies, andlabor unions. Some state and local laws apply to private employers withfewer than 15 employees. Check whether your state, county, or city has ahuman rights act or other law that prohibits discrimination againstindividuals with disabilities.What kinds of employment practices are covered byTitle I of the ADA?All of them – applying for a job, hiring, firing, promotions, compensation,training, recruitment, advertising, layoffs, leave, employee benefits,company functions, and all other benefits, conditions and privileges ofemployment are covered.When should I tell an employer that I have adisability?It depends. Generally, disclosure is discouraged during the applicationprocess, unless you need an accommodation during that process. Once youare hired, you are not legally required to disclose a disability to youremployer unless you request a reasonable accommodation. In light of themyths and stereotypes that still exist about people with disabilities,carefully consider the risks and benefits of disclosure before doing so.Can an employer make me have a medical exam or askquestions about my disability?The answer depends on where you are in the employment process.If you are a job applicant, the potential employer may not ask you to take amedical exam or ask any disability-related questions. The employer may askquestions about your ability to perform specific job functions, includingasking you to describe or demonstrate how you would perform thosefunctions.If you have gotten a conditional job offer, the employer may require you totake a medical exam or answer disability-related questions if the employerrequires the same thing of all employees in the same job category. In fact,the employer can even condition an offer of employment on the results ofADA National Network6Disability Law Handbook

the medical exam, again, so long as the exam is required for everybody.If you are a current employee, the employer may require you to undergo amedical exam only if it is job-related and consistent with business necessity.The employer may also ask questions about your ability to perform thefunctions of the job.What is a reasonable accommodation?A reasonable accommodation is any kind of modification or adjustment to ajob or to the work environment that makes it possible for a qualifiedapplicant or employee with a disability to either participate in the jobapplication process, enjoy equal benefits and privileges of employment, orto perform essential job functions.Can you give me some examples of reasonable andunreasonable accommodations?Examples of reasonable accommodations include: making the workplaceaccessible to and usable by an employee with a disability, restructuring ajob, modifying work schedules, providing qualified readers for individualswho are blind, providing sign language interpreters to people who are deaf,providing periods of leave for treatment, or modifying equipment.Reassignment to a vacant position can also be a reasonableaccommodation, although it is generally considered to be a last resort to besought only if an employee cannot perform the essential job functions evenwith a reasonable accommodation.It is not reasonable for an employer to lower quality or quantity standardsas a reasonable accommodations, and employers are not required toprovide personal use items needed outside the workplace, such aseyeglasses, wheelchairs, or hearing aids.Is telecommuting a reasonable accommodation?Telecommuting may be a reasonable accommodation depending on thekind of job you have and whether the essential functions of the job can beperformed off-site. The Equal Employment Opportunity Commission (EEOC)lists the following factors to be considered when deciding whethertelecommuting is a reasonable accommodation: Whether the employer can adequately supervise the employee;ADA National Network7Disability Law Handbook

Whether certain equipment or tools that cannot be replicated athome are required; Whether face-to-face interaction with other employees is needed; Whether in-person interaction with outside colleagues, clients, orcustomers is necessary; and Whether the job requires the employee to have immediate access todocuments or other information located only in the workplace.If an employer already allows telecommuting for employees, but requiresemployees to work for a specific number of months or years beforebecoming eligible for telecommuting, it might be a reasonableaccommodation for the employer to waive its time requirement foremployees with disabilities. Under these circumstances, the employer haslikely already determined that employees are capable of performing theirjob duties while working from home. If, however, the nature of the job issuch that physical presence at the workplace is necessary, thentelecommuting might not be a reasonable accommodation.Are there any limits on providing reasonableaccommodations?Keep in mind that the person requesting the accommodation must beotherwise qualified for the job and able to perform the essential functionsof the job, with or without reasonable accommodation. Also, employersneed to accommodate only individuals with known disabilities.Employers are not required to provide accommodations if doing so wouldbe an undue hardship on the operation of the business.What is an “undue hardship”?Undue hardship is an “action requiring significant difficulty or expense.” Thisis decided by looking at factors like the nature and cost of theaccommodation compared to the size, the overall financial resources of theemployer, and the structure of the business. If the employer is part of alarger entity, the overall resources of the larger organization are alsoconsidered. For these reasons, cost alone is rarely found to be an unduehardship, except possibly for very small employers. However, if anaccommodation has a significantly negative effect on the employer’sbusiness operation, that may be considered an undue hardship.ADA National Network8Disability Law Handbook

So if the employer can show my accommodationrequest is an undue hardship, am I out of luck?Not necessarily. Even if a particular accommodation would be an unduehardship on the employer, the employer must consider other options to tryto find an accommodation that would not pose an undue hardship. In therare case that the cost of the accommodation poses an undue hardship, theemployer should provide the cost up to the point that there is an unduehardship and then allow the employee the option of paying for the otherportion of the cost. Likewise, if the employer gets money from an externalsource, like a state vocational rehabilitation agency, that would pay theentire cost of the accommodation, it cannot claim cost as an unduehardship.As long as my office is accessible, do the other parts ofthe office, like the kitchen and break room, have to beaccessible?Yes. Employees with a disability should have access to areas where theywork, as well as non-work areas, such as break rooms, lunch rooms, trainingrooms, kitchens, and restrooms, used by other employees, unless providingaccess would be an undue hardship. Even events like conferences andparties held out of the office should be accessible.What if an employer refuses to hire me because the HRperson thinks it wouldn’t be safe to have me around?The ADA lets employers establish standards for determining whether anemployee poses a direct threat to the health or safety of that individual orothers. Direct threat is defined as a “significant risk of substantial harm tothe health and safety of the individual or others if, and only if, that riskcannot be eliminated or reduced by reasonable accommodation.”Deciding that an employee is a direct threat must be based on an individualassessment of that particular employee and must be based on the bestavailable medical or other objective evidence, as opposed togeneralizations, ignorance, stereotypes, fears, or patronizing attitudes. Forexample, it would violate the ADA if an employee with bipolar disorder isfired after disclosing his disability because a supervisor believes people withbipolar are dangerous. This reaction is based on myths and stereotypesrather than the best available evidence.ADA National Network9Disability Law Handbook

When determining whether an employee presents a direct threat, theemployer must determine whether any reasonable accommodations wouldeliminate or reduce the threat.If I use illegal drugs or am an alcoholic, am I coveredby the ADA?The ADA treats individuals who use illegal drugs differently from individualswho misuse alcohol. People who are currently engaging in the use of illegaldrugs are specifically excluded from the ADA definition of “qualifiedindividual with a disability.” Therefore, employers may take action againstthe employee on the basis of drug use without violating the ADA. However,a person who used illegal drugs in the past but went through arehabilitation program is considered to be a person with a disability and isprotected from discrimination.Alcoholism is treated differently under the ADA. A person who currentlyuses alcohol is not automatically denied protection. A person who hasalcoholism may be considered to be a person with a disability depending onwhether the person has an impairment that substantially limits a major lifeactivity. If you have alcoholism and meet the ADA’s definition of disability,you may be entitled to a reasonable accommodation, such as leave fortreatment or therapy. It is not a reasonable accommodation to allow anemployee to consume alcohol, or be under the influence of alcohol, at workif this violates legitimate workplace rules. An employer may discipline oreven fire you if your alcohol use affects your job performance or conduct.And of course, your employer may have a drug-free and alcohol-freeworkplace policy.If I have a disability, can my employer evaluate my jobperformance using the same performance and conductstandards that they use for everybody else?Generally, yes, as long as the same standards apply to everybody. Anemployer can evaluate performance standards, such as how well theemployee performs both essential and marginal job functions and whetherthe employee is meeting basic job requirements like teamwork, customerservice, work output, and product quality. Employers may also evaluate andenforce conduct standards like appearance standards, rules againstdestroying company property, rules about computer and equipment usage,ADA National Network10Disability Law Handbook

and attendance requirements.Your employer may not, however, use standards that are not job-related ifthe standards have the effect of discriminating on the basis of disability.Is an employer allowed to require the samequantitative and qualitative requirements forperformance as it requires for employees withoutdisabilities?Yes. An employee with a disability should meet the same productionstandards as all other employees doing the same job. Employers do nothave to lower production standards as a reasonable accommodation.However, a reasonable accommodation might be required to assistemployees with disabilities in meeting the same production standards. Forexample, an employer may require a secretary who is blind to type 70words per minute as long as the requirement is the same for allsecretaries. While the employer has no obligation to lower this standard, itmay be required to provide certain voice-activated software to enable theemployee with a disability to meet this standard.If an employee with a disability violates a workplaceconduct standard, can the employee be disciplined?Generally, yes, as long as the conduct standard is job-related andconsistent with business necessity, and all other employees are held to thesame standard. For example, if an employee who uses a wheelchair startsfrequent arguments with his/her supervisor or co-workers, s/he may bedisciplined because that conduct is not related to her disability. The ADAdoes not generally protect employees from the consequences of violatingconduct standards, even when the violation is caused by the disability.However, employers may be required to provide reasonableaccommodations to enable the employee to meet the conduct standards.Is it all right for an employer to require an employeeto get or change treatment for a disability to help orcomply with a conduct standard?No. Decisions about medications and medical treatment are generallypersonal medical decisions that take into account a number of factorsADA National Network11Disability Law Handbook

about which the employer may not be aware or have the expertise toconsider. Even if employers just want to help the employee, they shoulddiscuss the unacceptable conduct rather than medical treatments ormedications to treat a disability.Does having a disability protect me from being fired orlaid off?No. Title I of the ADA protects employees from being discriminated againston the basis of disability. It is not a violation for an employer to fire,demote, not promote, reduce hours, or change any other condition ofemployment for some other reason that is not related to your disability. Thesame situation exists with layoffs or reductions-in-force. If your discharge isnot based on your disability, your employer has not violated the ADA.What should I do if my employer has discriminatedagainst me because of my disability?Complaints may be filed with either the EEOC or your state’s designatedhuman rights agency. Private lawsuits are also an option, but you cannot filea lawsuit until after the EEOC or your state’s human rights agency hasinvestigated your complaint and issued a notice that’s referred to as a“Right To Sue Letter.”You can contact the EEOC at:800.669.4000 (Voice)800.669.6820 (TTY)www.eeoc.govADA National Network12Disability Law Handbook

State and Local Governmentsand the ADAWhat is the goal of this part of the ADA?The goal of Title II of the ADA, which covers state and local governments, isreally to make sure that people with disabilities have equal access to civiclife. Individuals with disabilities must be provided an equally effectiveopportunity to participate in or benefit from a public entity's aids, benefits,and services. It essentially covers everything that the state or localgovernment does, including public housing, licensing, all levels of publiceducation, transportation, parks and recreation, detention, emergencyresponse, and police.The City Hall in my town is a very old building and I’vebeen told that, because it is a historical building, itdoesn’t have to comply with the ADA. Is that true?There are two different concepts in this question. The first relates to accessto an historic preservation program and the second is program access in theform of access to city services. Structural changes to facilities that are“historic,” meaning they are listed in or eligible for listing in the NationalRegister of Historic Places or designated as historic under state or local law,might threaten or destroy the historical significance of the property, so theADA might not require those kinds of structural changes. If that’s the case,though, the entity must consider alternatives to such structural changes.These might include providing the government service in another building,or using audiotape or video images to demonstrate the historicalsignificance of the inaccessible portions of the property. If alterations aremade to the property, though, then the changes must conform to the ADAStandards for Accessible Design, which has specific provisions on historicbuildings, to the maximum extent feasible.What about buildings that aren’t really historical, butwere built before the ADA went into effect? Does thelocal government have to make those

2323 S. Shepherd, Suite 1000 Houston, Texas 77019 713.520.0232 800.949.4232 www.southwestada.org The Southwest ADA Center is part of a national network of ten regional ADA Centers that provide up-to-date information, referrals, resources, and training on the Americans with Disabilities Act (ADA). The centers serve a