The Americans with Disabilities Act (ADA) was passed by Congress and incorporated into law on July 26, 1990. ADA provides civil rights protection to people with disabilities, similar to those granted to women and minorities. The law prohibits discrimination based on obstruction of an individual in employment, by state and local governments and their instruments, through public housing, in public and private transport, and in communication. The ADA grants all people with disabilities uniform protection, regardless of which state they live in.
Title I of the ADA prohibits discrimination against qualified persons with disabilities in employment and applies to private employers with 15 or more employees. Title II of the ADA prohibits discrimination by state and local governments, whether or not they receive federal funding. Employees of state and local governments, their agencies and instruments have been insured for discrimination in the workplace since January 26, 1992.
According to the ADA, an employer may not ask whether an applicant has a disability, inquire about the severity of a disability, or make an inquiry that is likely to elicit information about a disability before offering a job. Employers are also prohibited from asking third parties questions about an applicant’s disability status that they were unable to ask the applicant directly. Employers are free to inquire about whether an applicant can perform job-related functions. If an applicant has a known disability that could affect the performance of the job, an employer may ask the applicant to describe or demonstrate how they will perform certain duties.
If an applicant informs an employer that he or she has a disability, the employer cannot ask how the person was disabled or what their prognosis is. The employer can provide the attendance policy and ask if the applicant can follow the policy. An employer may ask applicants to provide the accommodations they may need for a pre-hire test.
An employer who is of the opinion that an applicant meets the requirements of a position can offer the applicant a position which is dependent on the satisfactory result of a medical examination or examination, provided that all applicants in this professional class or category must undergo such an examination or Inquiry. Such a test or investigation need not focus on the ability to perform a task, but may examine information that the employer believes is relevant to a person’s ability to perform a task. In this phase, questions can be asked that are forbidden before a conditional job offer.
All medical information that employers receive about applicants or employees must be kept confidential. Exceptions to this confidentiality requirement are limited to the following areas: supervisors who need to be informed of the necessary restrictions for a particular employee or who take reasonable precautions; medical departments or security personnel who need information if emergency treatment is required; Government officials investigating complaints; State officials and workers ‘compensation insurers handling workers’ compensation claims may have access under state law; and employers who, with the consent of the insured, transmit information to the company’s health insurance company.
If a conditional job offer is withdrawn based on the results of an examination or investigation, an employer must be able to demonstrate that: a) the reasons for the withdrawal were job-related and consistent with business need, or the individual’s disability posed a direct threat to health or security of yourself or others; and b) there are no reasonable arrangements in place which would enable individuals to perform essential duties without posing a direct threat to health or safety.
Once employment begins, an employer can make disability-related inquiries and only require medical examinations if these are “job-related and consistent with business need”. This means that the employer must have a reasonable conviction, based on objective evidence, that: an employee will be unable to perform the essential functions of his job due to illness; or the employee poses a direct threat due to illness.
Employers can also obtain medical information about an employee if the employee has requested adequate accommodation and their disability or need for accommodation is not obvious. In addition, employers can receive medical information about employees if they: are obliged to do so under another federal law or regulation (e.g. requirements for medical certification by the Ministry of Transport for interstate truck drivers) Offer voluntary programs that aim to identify and treat common health problems such as high blood pressure and cholesterol; take positive action based on federal, state, or local law that requires positive action for people with disabilities, or voluntarily use the information they receive to help people with disabilities.
The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing Title I of the ADA, has issued comprehensive guidance on these issues, which is available on the EEOC website under Enforcement Guidelines on Disability-Related Assessments and Employee Medical Assessments , Disability before employment-
Related questions and medical exams, and questions and answers about how-to guides for employee inquiries and exams. See also the EEOC’s Questions and Answers on Epilepsy in the Workplace.
A person who feels discriminated against because of their disability can file a complaint with the EEOC. Allegations of discrimination must generally be filed with the EEOC within 180 days of the alleged discriminatory act (see the Epilepsy Foundation’s information sheet on how to file a complaint with the EEOC). Additional protection may be available under federal and state discrimination laws. While you don’t need a lawyer to file a complaint, you may want to consult a local lawyer to learn how the law applies in your particular situation and for advice on how to proceed.
For information on how to obtain a referral to a lawyer in your area who may be able to provide specific advice or representation, please visit Jeanne A. Carpenter’s Legal Defense Fund for Epilepsy at www.epilepsylegal.org or call our information and referral service toll free at (800) EFA-1000 ((800) 332-1000). For general legal information on this and other workplace discrimination issues, such as reasonable accommodation and the definition of disability, please contact our information and referral service.