Americans with Disabilities Act (ADA)

The Americans with Disabilities Act was passed in 1990 and essentially prohibits discrimination based on disability. Private employers, state and local governments, employment agencies, and labor unions cannot discriminate against qualified individuals with disabilities in the application process, hiring, firing, promoting, salary, and other privileges of employment. In other words, if you have a disability, your rights are protected under the law. It's essential to understand exactly how the law applies to you in the workplace.

Fact

A recent study revealed that 125 million people in the U.S. work force have a chronic illness, which is defined as a medical problem that lasts a year or longer, limits what a person can do, and requires ongoing care. As people are living longer than ever before and thus working later into their lives, employers are confronted with the issues of chronic illness and disability in increasing numbers.

What Constitutes a Disability under the ADA?

This is an important question, because the law doesn't list certain diseases or conditions as a way to define disability. Instead, the ADA has a general definition of disability that each person must meet.

Under the ADA, a person is considered to have a disability if he has an impairment (usually a diagnosis), and the impairment substantially limits one or more major life activities (such as walking, seeing, hearing, reading, performing manual tasks, and so on). Additionally, an employee can meet the ADA's definition of disability by having a record (a medical record, for example) or being regarded as having a disability (by your doctor, perhaps, or even your boss).

This is where things can get a little sticky. It's up to the employer to determine whether or not you have a disability that requires some changes in the workplace. If your impairment is not known or is not obvious, your employer can ask for medical documentation to determine whether your disability substantially limits one or more life activities. Your employer may ask you to review the definition of disability provided by the ADA and determine for yourself whether you meet the criteria and then proceed with the accommodation request. You may want (or you may be asked) to attach medical documentation to the request.

You are not required to divulge your diagnosis if you are not comfortable doing so. If pressed, you are entitled to be vague, saying only, for example, “I have a neurological condition.” The law requires that you provide some verification from your physician that you have a disability, but doesn't specify that you divulge anything more. The letter from your doctor may only confirm that you have a “neurological condition” as well. Keep in mind that if the employer insists on knowing the diagnosis and the employee refuses to divulge it, the employer probably has a valid reason to refuse the request.

The easiest way around this, of course, is to divulge your diagnosis and have medical documentation from your physician at hand, but only you can decide what is comfortable for you based on your own set of unique circumstances regarding your health and your employment.

Question

Must I divulge my diagnosis to a prospective employer?

Employers may not ask job applicants about the existence, nature, or severity of a disability, although you may be asked about your ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer's business needs.

The ADA has muscle. In 2006, there were 15,575 formal charges of disability discrimination in the United States; 15,045 of the cases were resolved and $48.8 million in monetary benefits was recovered for the aggrieved parties. So, know that you have precedence — and the law — on your side if you have been treated unfairly at work.

Reasonable Accommodation

A reasonable accommodation is one that doesn't require your employer's undue hardship, meaning they should make every effort to meet your needs unless the accommodation is too expensive or disruptive for business. What is an undue hardship varies greatly given the size and financial resources of your company. A small company may not have the resources to accommodate. The ADA pertains to any employer who has fifteen or more employees, although individuals working for smaller companies may be entitled to similar protections under state and local laws. Keep in mind that an employer is not required to lower quality or production standards to accommodate a person with a disability, nor are they required to provide personal-use items such as glasses or hearing aids.

Unpaid leave is a reasonable form of accommodation, unless it will create a hardship for the employer. If you are reassigned to another position, it should be one that is of equal pay or equal status to the position you held before, or as close as possible. You must be qualified for the new position.

Fact

Under the ADA, reasonable accommodation includes making the facilities accessible for persons with disabilities. Employers are also required to restructure jobs, modify schedules, and reassign people to other positions if necessary. They must also modify or adapt the work environment and provide readers and interpreters when necessary.

Under the ADA, the responsibility falls on you to request accommodations, so you'll have to decide what you need and approach your employer yourself. Having a sound plan will help keep the conversation on track. If you'd like to explore adapting your work environment, know which assistive devices will work best for you. (Contact the Job Accommodation Network for ideas at www.jan.wvu.edu.) If you'd like to request a more flexible work schedule, have a specific plan in mind and be willing to listen to your employer's ideas. Hopefully, you can set the tone for teamwork and mutual cooperation.

The EEOC

The U.S. Equal Employment Opportunity Commission oversees enforcement of the employment title of the ADA. This is where you turn if you believe you are being discriminated against in the workplace, although your first line of defense is to make your best effort at working things out with your employer.

If you have been discriminated against, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred, such as promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You may also be entitled to attorney's fees.

You can file a charge by contacting any EEOC field office, located in cities throughout the United States. To contact the EEOC, look in your telephone directory under “U.S. Government.” For information and instructions on reaching your local office, call: 1-800-669-4000. Or look on the web at www.eeoc.gov.

Alert

A charge of discrimination generally must be filed within 180 days of the alleged discrimination (although you may have up to 300 days to file a charge if there is a state or local law that provides relief for discrimination on the basis of disability). However, to protect your rights, it is best to contact the EEOC promptly if discrimination is suspected.

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