Monster Media 1996 #14/Monster Media No. 14 (April 1996) (Monster Media, Inc.).ISO/business/sba961.zip/F130.SBE

Text File | 1996-01-01 | 12KB | 280 lines

@158 CHAP 5

     ┌───────────────────────────────────────────────────┐
     │COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT│
     └───────────────────────────────────────────────────┘

In July of 1990, Congress enacted a revolutionary and wide-
reaching piece of legislation, the Americans with Disabili-
ties Act (The ADA), designed to make both the workplace and
most public facilities much more accessible to disabled
persons than has been the case up to now.

This new law (42 U.S.C. 12101, et seq.) and related regu-
lations (29 C.F.R. 1630), which were phased in over a
period of several years, are already having significant
impacts on a great many businesses, both in terms of em-
ployment practices, covered under Title I of the ADA, and
in terms of removing architectural barriers and other
physical features that have limiting effects on the lives
of disabled persons (Title III of ADA).


         NEW ANTI-DISCRIMINATION HIRING
         RULES REGARDING THE DISABLED

Title I of ADA, effective for larger firms on July 26, 1992,
prohibits discrimination against any "qualified individual
with a disability" in all aspects of employment, including
hiring and discharge of workers, compensation and benefits.
In addition, employers must "reasonably accommodate" em-
ployees' or applicants' disabilities, which may mean modi-
fying facilities, restructuring work schedules, or trans-
ferring disabled workers to vacant positions for which they
are qualified, in appropriate circumstances.  Employers are
not required to accommodate a disabled worker, however, if
doing so would impose an "undue hardship" on the employer.
@IF014xx](NOTE:  Because your firm has fewer than 15 employees, the
@IF014xx]ADA discrimination rules that phased in between 1992 and
@IF014xx]1994 do not apply to @NAME.)
@IF015xx]These ADA discrimination rules already apply to you, since
@IF015xx]your firm has @EMP employees (assuming that at least fif-
@IF015xx]teen people are employed during any given 20 weeks of the
@IF015xx]year by @NAME).


         MEDICAL SCREENING TESTS
         SHARPLY CURTAILED

One area that is significantly affected in the hiring
process is the limitation on medical screening of appli-
cants.  Companies no longer can, under ADA, screen out pro-
spective employees with disabilities because the applicant
has an elevated risk of an on-the-job injury, or a medical
condition that might be aggravated because of job demands.
The law specifically bans questions about a job applicant's
physical or mental condition either on an employment appli-
cation form or during a job interview.  (Including general
questions such as, "Do you have any mental or physical con-
ditions that would prevent you from performing your job
functions?")

Medical exams are still allowed, but are greatly restricted.
Pre-offer exams are prohibited, but an offer may be condi-
tioned upon the satisfactory results of a medical examina-
tion.  (But results cannot be used to withdraw an offer,
unless they show that the individual in question is not
able to perform the tasks required by the position sought.)

Employers should be aware that the definition of "disabled"
under the ADA includes people with AIDS, those who test
positive for HIV, and rehabilitated drug abusers and alco-
holics.

But note that the ADA does NOT:

  . prohibit voluntary tests, such as employer-sponsored
    cholesterol or blood pressure tests; nor

  . require employers to hire persons who are:  currently
    engaged in use of illegal drugs; who have contagious
    diseases; compulsive gamblers; kleptomaniacs; pyro-
    maniacs; or homosexuals.

ADA is neutral on the issue of drug testing of employees,
in effect leaving that up to regulation by the states.


ADA's employment-related rules became effective on the
following dates:


  . July 26, 1992 -- Equal employment rules with regard to
    the disabled, effective for employers with 25 or more
    employees during 20 weeks of the year.

  . January 26, 1993 -- All commercial firms, not just
    those serving the public, must make NEW facilities and
    grounds accessible to the disabled, both to disabled
    employees and to customers.

  . July 26, 1994 -- Equal employment rules with regard to
    the disabled became effective for employers with 15 or
    more employees during 20 weeks of the year.

@IF023xx](NOTE:  Since your firm has @EMP employees, it is thus cur-
@IF023xx]rently subject to the ADA discrimination rules, due to the
@IF023xx]fact that the ADA threshold dropped to 15 employees as of
@IF023xx]7-26-94.  Prior to that date, the ADA discrimination rules
@IF023xx]would not have applied to @NAME.)


       PUBLIC ACCOMMODATIONS FOR
       THE DISABLED

Title III of the ADA requires practically all businesses to
make their facilities accessible to disabled employees and
customers.  Examples of various accessibility requirements
with regard to public accommodations include the following
(in all new facilities, and where "feasible" in existing
ones):

  . A specified number of designated parking spaces for the
    disabled provided, depending on the total number of such
    parking spaces;

  . Hotels and motels must have a set percentage of their
    rooms accessible to wheelchairs and other rooms must be
    equipped with such devices as visual alarms for the
    hearing-impaired, for instance;

  . Access ramps must be in place where the floor is not
    sufficiently level;

  . Elevators must be provided in most multi-story buildings;

  . In retail and grocery stores, checkout aisles must be
    wide enough for wheelchairs;

  . Theaters and similar places of assembly must have speci-
    fied numbers of wheelchair spaces dispersed throughout
    their seating area;

  . And many other similar requirements....

The new public access requirements became effective for all
companies (of any size) on January 26, 1993.


     TAX INCENTIVES FOR REMOVING ARCHITECTURAL BARRIERS

Companies spending money to remove architectural and trans-
portation barriers to the disabled can deduct up to $15,000
a year of such expenses. (I.R.C. Sec. 190.)  In addition,
small firms (those with gross receipts under $1 million or
fewer than 30 full-time employees), who spend between $250
and $10,250 a year on access for the disabled, can claim a
tax credit for up to 50% of the cost of such expenditures
(a maximum annual credit of $5000).  (I.R.C. Sec 44)

NOTE:  For more information on the Americans with Disabili-
ties Act, call the U.S. Department of Justice's information
line, at [phone].


          ┌───────────────────────────────────────────────┐
          │  LEGAL AND ILLEGAL JOB INTERVIEW QUESTIONS:   │
          │       (UNDER MAY, 1994 EEOC GUIDELINES)       │
          └───────────────────────────────────────────────┘


A set of questions only a lawyer could love....

The following examples illustrate the extreme subtlety
and technicality of the distinctions between "legal" and
"illegal" job interview questions an employer may ask under
the ADA:

     LEGAL QUESTION                 ILLEGAL QUESTION
  -----------------------------  ---------------------------
1  Do you have 20/20 corrected    What is your corrected
   vision?                        vision?

2  How well can you handle        Does stress ever affect
   stress?                        your ability to be
                                  productive?

3  Can you perform this func-     Would you need reasonable
   tion without reasonable        accommodation in this job?
   accommodation?

4  How many days were you ab-     How many days were you sick
   sent from work last year?      last year?

5  Are you currently illegally    What medications are you
   using drugs?                   currently taking?

6  Do you regularly eat three     Do you need to eat a number
   meals per day?                 of snacks at regular inter-
                                  vals throughout the day in
                                  in order to maintain your
                                  energy level?

7  Do you drink alcohol?          How much alcohol do you
                                  drink per week?

   SOURCE:  EEOC "Enforcement Guidance on Pre-Employment
            Disability-Related Inquiries," May, 1994

          ┌───────────────────────────────────────────────┐
          │   EEOC INTERNAL GUIDELINES FOR DEFINING WHAT  │
          │   CONSTITUTES A "DISABILITY" UNDER ADA LAW    │
          │   AND RELEVANT COURT DECISIONS                │
          └───────────────────────────────────────────────┘

The federal Equal Opportunity Commission ("EEOC"), in order
to assist its staff in making determinations of what consti-
tutes disability under the ADA and applicable regulations
and court decisions, has created in internal manual for use
by EEOC personnel.

Under ADA, a disabled person is one who (1) has a physical
or mental impairment that substantially limits one or more
major life activities, (2) has  record of such an impairment,
or (3) is regarded as having such an impairment.  The inter-
nal EEOC guide fleshes out each part of this definition.

"Impairment" means a physiological disorder affecting one
or more body systems or a mental or psychological disorder.
Excluded from this definition are environmental, cultural,
and economic disadvantages; homosexuality or bisexuality;
physical characteristics; pregnancy; common personality
traits; and normal deviations in height, weight or strength.

According to the Technical Assistance Manual on ADA issued
by the EEOC, the ADA also does not protect the following
types of additional disorders:

  . Current illegal use of illegal or legal drugs;
  . transvestitism;
  . transsexualism;
  . pedophilia;
  . exhibitionism;
  . voyeurism;
  . gender identity disorders not resulting from physical
    impairments;
  . compulsive gambling;
  . kleptomania;
  . pyromania; or
  . psychoactive substance abuse disorders, where the person
    is currently using such illegal substances.

"Substantially limited," as the guide defines it, means
prohibiting or significantly restricting a person's ability
to perform (1) a major life activity as compared with an
average person's ability to do so or (2) a class of jobs or
a broad range of jobs in varying classes.  Temporary impair-
ments that take significantly longer than normal to heal,
and long-term (or potentially long-term) impairments of in-
definite, but not permanent, duration may also be consid-
ered disabilities.

"Major life activities," as described in the guide, include
sitting, standing, lifting, thinking, concentrating, and in-
teracting with others.

Other portions of the guide go on to point out that even a
person who has an impairment that does not substantially
limit a major life activity may be considered disabled if
treated as having such a limitation by an employer, or if
the person is so limited only because of the attitudes of
others toward the impairment.

As you may have already realized, these are extremely broad
interpretations of what constitutes a disability.  Accord-
ingly, as these will be the definitions relied on by the
EEOC in interpreting ADA, look for enforcement of ADA to
extend to many situations you might not normally consider
to have anything to do with "disability," in the normal
or traditional sense of the word.