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1996-08-23
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@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
Disabilities 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
regulations (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
employment 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"
employees' or applicants' disabilities, which may mean
modifying facilities, restructuring work schedules, or
transferring 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 fifteen
@IF015xx]people are employed during any given 20 weeks of the year
@IF015xx]by @NAME).
MEDICAL SCREENING TESTS
SHARPLY CURTAILED
One area that is significantly affected in the hiring
process is the limitation on medical screening of applicants.
Companies no longer can, under ADA, screen out prospective
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
application form or during a job interview. (Including
general questions such as, "Do you have any mental or physical
conditions that would prevent you from performing your job
functions?")
Medical exams are still allowed, but are now greatly
restricted. Pre-offer exams are prohibited, but an offer
may be conditioned upon the satisfactory results of a
medical examination. (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
alcoholics.
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;
pyromaniacs; 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
@IF023xx]subject to the ADA discrimination rules, due to the fact
@IF023xx]that the ADA threshold is 15 employees as of July 26, 1994.
@IF023xx]Prior to that date, the ADA discrimination rules would not
@IF023xx]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
specified 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 that must spend money to remove architectural and
transportation 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 Disabilities
Act, call the U.S. Department of Justice's information line,
at (202) 514-0301.
┌───────────────────────────────────────────────┐
│ 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 Would you need reasonable
function without accommodation in this job?
reasonable accommodation?
4 How many days were you How many days were you sick
absent 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
intervals throughout the day
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
constitutes disability under the ADA and applicable
regulations and court decisions, has created an 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 internal
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
impairments that take significantly longer than normal to
heal, and long-term (or potentially long-term) impairments
of indefinite, but not permanent, duration may also be
considered disabilities.
"Major life activities," as described in the guide, include
sitting, standing, lifting, thinking, concentrating, and
interacting 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. Thus,
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.