ADA (Americans with Disabilities Act) - Employment (Title I)
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Q. If an employee states that he/she is disabled and cannot perform his or her job duties, what should an employer do?
A. An employer should ask the employee for supporting documentation (i.e., medical documentation) to assist the employer in determining the nature, type and extent of the disability and whether it affects an employee’s ability to perform the essential functions of his or her position. An employer should also contact the campus human resources office or legal staff to obtain adequate advice and consultation during this process.
Q. Should an employer voluntarily approach an employee if the employer suspects the employee is disabled and needs an accommodation?
A. It depends. In general, an employer should not assume or speculate about an employee’s physical or mental impairment. However, if an employee’s work-related performance is affected by an impairment, the employer should discuss the work-related performance issues with the employee, such as behavior, work performance or attendance. On the other hand, if an employee believes that an impairment is affecting work performance, the employee should notify the employer so that it can be determined whether the impairment is a disability (and whether an accommodation is necessary). If a question or concern arises, the employer should contact the applicable campus human resources or affirmative action personnel to discuss the situation in detail for guidance and direction.
Q. May an employer establish specific attendance and leave policies, even though they may have a more severe effect on an employee with a disability?
A. Yes, as long as those policies are applied in a similar and consistent manner toward all employees, regardless of a disability.
Q. Is reassignment to a different position a reasonable accommodation?
A. In general, an employer should only consider reassignment if an accommodation in the employee's current position is unfeasible. If the employer offers reassignment, it must be to a vacant position for which the employee is qualified. An employer is not required to create a new position. Further, an employer is not required to disregard the terms of a collective bargaining agreement for purposes of a reassignment, transfer or vacancy.
Q. Is a promotion a reasonable accommodation?
A. It depends. Under the ADA, an employer is not required to create a new position, "bump" other employees, or promote a disabled employee for the sole purpose of providing an accommodation.
Q. Does an employer need to provide the employee's chosen accommodations?
A. No. Under the ADA, an employer is only required to provide a reasonable accommodation which will allow a qualified employee with a disability the opportunity to perform the essential functions of the job. Determining the type and nature of one or more accommodations should be an interactive process between the employer and the employee. Note that the employer has the ultimate discretion to determine what accommodation will be provided. An employee does not have the right to demand a particular accommodation or the “best” accommodation.
Q. Must an employer modify existing facilities to provide a disabled employee reasonable access to the workplace?
A. Yes, if doing so is necessary to provide a reasonable accommodation for a specific employee with a disability and does not impose undue financial or administrative hardship on the employer’s business or operations.
Q. What is considered as an “undue financial or administrative hardship” for purposes of determining whether an accommodation is reasonable?
A. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation. For example, an employer is not required to lower quality or production standards to make an accommodation, nor is an employer obligated to provide personal use items such as glasses or hearing aids. However, an employer may provide certain work-related equipment, such as telephone devices or computer devices to assist an employee in performing the essential functions of his or her job.
Q. Does the ADA protect an applicant or employee who currently uses illegal drugs or alcohol?
A. No, such a person is specifically excluded from the definition of a qualified individual with a disability. However, an addiction may qualify as a disability for purposes of the ADA. If so, the employer may be required to provide certain reasonable accommodations upon request, such as use of leave or benefits for medical and/or professional treatment or counseling.
Q. What if an employee’s performance is deficient because of drug or alcohol use? Can the employer discipline the employee based on job performance?
A. Yes. An employer may discipline or discharge an employee (or refuse to hire an applicant) who uses alcohol or drugs in a manner that adversely affects job performance or conduct. An employer may also prohibit the use of alcohol or drugs in the workplace.
Q. What are an employer's recordkeeping requirements under the ADA?
A. An employer shall maintain all employment-related records (including applications and supporting documentation relating to hiring) in accordance with the Wisconsin Public Records Act and federal law. This includes all letters, documents, certifications and/or medical records relating to an individual’s disability, requests for accommodation(s) and written correspondence between employer and employee throughout the accommodation process. The employer must also maintain records relating to promotion, transfer, layoff or termination, rates of pay or other terms of compensation, and selection for training. These records must be maintained for a minimum of one (1) year after the record is created or action is taken, whichever occurs later. In addition, if a person files a disability discrimination charge or if the Equal Employment Opportunity Commission brings an action, an employer must save all personnel records related to the charge until its final disposition.
Q. May an employer consider mitigating measures, such as medication that corrects the impairment, in determining whether an employee has a disability?
A. No. In accordance with the ADA Amendments Act of 2008, an individual’s use of one or more mitigating measures (except ordinary eyeglasses or contact lenses) cannot be considered in determining whether an impairment substantially limits a major life activity (note that negative effects can be considered). This includes measures such as medication, equipment, devices, hearing aids, use of assistive technology, auxiliary aids or services, among others.
Q. May an employer consider mitigating measures in assessing whether an employee is entitled to a reasonable accommodation or poses a direct threat to self or others?
A. Yes. The ADA Amendments Act of 2008’s prohibition on assessing the positive effects of mitigating measures applies only to the determination of whether an individual meets the definition of “disability.” All other determinations, including the need for a reasonable accommodation and whether an individual poses a direct threat, can take into account the positive and negative effects of a mitigating measure. For example, if an individual with a disability uses a mitigating measure which eliminates the need for a reasonable accommodation, then an employer will have no obligation to provide one.
Applicable Laws and Policies
The Americans with Disabilities Act of 1990 (ADA) and Section 504 of the Rehabilitation Act of 1973 prohibit discrimination on the basis of a qualified disability. (42 U.S.C. § 12101) The ADA protects persons with disabilities from discrimination in the areas of employment (Title I), access to state and local government programs and services (Title II), and public accommodations (Title III). Section 504 of the Rehabilitation Act of 1973 (29 U.S.C.§§ 701-796) provides similar protections against discrimination in regard to programs or activities that receive federal financial assistance.
The Wisconsin Fair Employment Act (WFEA, §§ 111-31-111.395) prohibits discrimination against individuals with qualifying disabilities in employment. WFEA (§ 111.32) defines a handicapped individual as an individual who has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work, or has a record of such an impairment, or is perceived as having such an impairment.
University of Wisconsin System Policy
In accordance with the ADA, Section 504, and WFEA, the University of Wisconsin System has adopted a policy that prohibits discrimination against qualified individuals. This policy details the responsibilities of University of Wisconsin System institutions and the rights of students, employees and members of the general public (Regent Policy 14-10). If you have a specific question or concern, please consult Regent Policy 14-10 and/or contact the Office of General Counsel or Campus Legal Counsel.
Qualified Individual with a Disability
Under Title I of the ADA, an employer is prohibited from discriminating against a qualified individual with a disability in all conditions of employment, including job application procedures, hiring, firing, advancement, tenure, compensation, training, layoff, leave and fringe benefits. In order to be protected by the ADA, a person must be a “qualified individual with a disability,” which is defined as an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of the position.
The ADA defines a disability as a physical or mental impairment that substantially limits one or more of the person’s major life activities, a history of such impairment, or being regarded as having such impairment. The WFEA defines a handicapped individual as one who has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work, has a record of such impairment, or is perceived as having such impairment.
What is an Impairment?
An impairment has been described as a physiological disorder or condition, cosmetic disfigurement, or anatomical loss, such as epilepsy, paralysis, HIV infection, AIDS, or substantial hearing or vision impairment; or a mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Some examples of an impairment include conditions that are otherwise not short-term, non-chronic conditions, such as a broken bone, a sprain or a common cold. An impairment may be considered a disability even if it is episodic or in remission as long as it substantially limits a major life activity when active.
In addition to the above, certain impairments will consistently meet the definition of a disability, such as deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. The individualized assessment of whether a substantial limitation exists can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability. This is not an exhaustive list of examples, which means that impairments not listed herein may meet the definition of a disability. In addition, some impairments may substantially limit one person but not another, such as asthma, back and leg impairments, and learning disabilities.
What is a Substantial Limitation?
A substantial limitation is defined as a material restriction of the duration, manner or condition under which an individual can perform a major life activity when compared to the average person’s ability to perform that same major life activity. Temporary impairments that take significantly longer than normal to heal, long-term impairments, or potentially long-term impairments of indefinite duration may be disabilities if they are severe.
What is a Major Life Activity?
A major life activity is defined as the act of caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. A major life activity also includes, but is not limited to, the operation of a major bodily function, such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
As it relates to current employees, the ADA and state law defines a qualified individual with a disability as an individual who meets the legitimate skill, experience, education or other requirements of a position that he or she holds; who has a physical or mental impairment that substantially limits a major life activity (or makes achievement difficult or is limited thereby); and who can perform the essential functions of the position with or without reasonable accommodation.
A reasonable accommodation is defined as a modification to a job, to the process of applying for the job or to the work place that will enable a qualified individual with a disability to apply for a job, perform the essential functions of the job or enjoy the same benefits and privileges that nondisabled employees enjoy, as long as the modification does not impose undue financial or administrative hardship on the employer. For example, a person hired in the position of clerical staff is usually required to perform typing functions. If a disability impacts the person’s ability to type, then the employer may consider a reasonable accommodation to allow the person to perform this essential function. Examples of reasonable accommodations include job restructuring, modified work schedule, purchase or modification of equipment or reassignment of duties to other coworkers.
Interactive Process for Reasonable Accommodations
If an employee with a disability requests an accommodation, the employer is required to initiate an interactive discussion with the employee to discuss the type and nature of the disability, the accommodation sought and any other relevant or available accommodations that will allow the employee to perform the essential functions of the position. While an employee’s preference should be considered, the institution has the ultimate discretion to decide what accommodation is reasonable and sufficient, and does not pose an undue hardship on the institution.
Upon the enactment of the ADA Amendments Act of 2008, an employer is now prohibited from considering an individual’s use of one or more mitigating measures (except ordinary eyeglasses or contact lenses) in determining whether a person is disabled (i.e., an impairment substantially limits a major life activity). This does not include the consideration of negative effects caused by mitigating measures. However, all other determinations, including the need for a reasonable accommodation and whether an individual poses a direct threat, can take into account the positive and negative effects of a mitigating measure. For example, if an individual with a disability uses a mitigating measure which eliminates the need for a reasonable accommodation, then an employer has no legal obligation to provide one.
A person is not qualified under the ADA if he or she poses a “direct threat” to the health or safety of self or others. A “direct threat” is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. If an employee poses a direct threat of harm to self or others, the employer may take appropriate disciplinary action to respond to the threat.
Applicants for Employment
An applicant for an employment position is also protected from discrimination on the basis of a disability under the ADA. The following concepts apply to persons who seek employment at an institution subject to the ADA requirements.
Tests and Criteria
An employer may not use employment tests or criteria that tend to screen out qualified individuals with disabilities unless the tests or criteria relate to an essential function of the job. In addition, an employer must select and administer employment tests in a manner that ensures the tests accurately reflect the skill or aptitude of the applicant or employee, and not that person’s disability. If the employer knows of an applicant’s disability, the employer must make reasonable testing accommodations for the applicant, which may include waiving an employment test or a portion of a test or providing an alternative test or evaluation.
Medical Examinations and Inquiries
An employer may not conduct pre-employment medical examinations or inquiries of a job applicant to determine if the applicant has a disability, although an employer may make certain pre-employment inquiries concerning the applicant’s ability to perform job-related functions and may, with some limitations, ask an applicant with a disability how he or she would perform these functions.
Because the issue of employment examinations and inquiries is complex, please consult the Equal Employment Opportunity Commission’s Enforcement Guidance under the ADA and contact the Office of General Counsel or Campus Legal Counsel with any questions.
All records that are maintained or collected in regard to an individual’s disability (such as confidential medical documentation, notes, documents or correspondence regarding the individual’s job functions, essential duties and reasonable accommodation) must be kept in a file separate from the general personnel files. Any information relating to an employee’s disability and any reasonable accommodation(s) is strictly confidential and should not be disclosed to or discussed with anyone other than pertinent administrators with a legitimate interest in the individual’s employment. You should not disclose information in this confidential file to anyone other than the disabled employee without the approval of the Office of General Counsel or Campus Legal Counsel.