The ADA can be complex, particularly for employers, so we've created an in-depth guide to help you understand what the ADA is, why it's important, and how you can be compliant.
- The ADA is a law that prevents discrimination against individuals with disabilities in all areas of public life, including employment.
- It covers discrimination, accessibility, privacy of medical information and protection against retaliation.
- There are many resources to help your business achieve ADA compliance, such as the Job Accommodation Network.
The Americans with Disabilities Act (ADA) is a vital piece of legislation that protects individuals with disabilities from discrimination in all areas of public life and ensures equal access and treatment. Title I of the ADA deals with employment and ensures that people with disabilities are provided the accommodations they need in the workplace. It also ensures the those with disabilities are fully considered during the recruitment process. Here's what employers need to know.
What is the ADA?
The ADA was signed into law by President George H.W. Bush in July of 1990 to prohibit discrimination against individuals with disabilities in all areas of public life, including education, public services and employment. The Equal Employment Opportunity Commission is the agency responsible for enforcing the ADA's employment regulations.
In 2008, the Americans with Disabilities Act Amendments Act (ADAAA) was signed into law, which made several significant changes to the definition of "disability" in response to the gradual narrowing of the definition that had occurred over the previous 15 years, making it difficult for employees to prove they had a disability that could be protected under the ADA.
The ADAAA broadened the definition of "disability" to include more people and rejected two Supreme Court decisions that had played a large role in restricting the legal definition of "disability." While the ADA did not change the basic definition, the act made it easier to decide if an employee is covered. According to the ADA, a person has a qualified disability if they:
- Have a physical or mental impairment (i.e., illness, injury or other condition) that significantly limits one or more major life activities
- Have a record of such an impairment
- Are regarded as having such an impairment
Title I of the ADA is designed to ensure equal employment opportunities for people with disabilities by requiring employers to provide reasonable accommodations that allow those with disabilities to participate in the job application process or perform specific job functions.
Reasonable accommodations can include things like:
- Making existing facilities accessible to and usable by people with disabilities
- Job restructuring or modification
- Acquiring or modifying equipment, devices or furniture
- Acquiring helpful devices or software, such as speech-to-text
- Modifying training materials or policies
Keep in mind that reasonable accommodation is meant to be reasonable for both the employee and the employer. If an accommodation would cause undue hardship, i.e., requiring significant difficulty or expense on the part of the company or you as the employer, work together with the employee to come up with a solution that will appease both parties.
Legally, if there is more than one accommodation that could work, the employer may choose the one that is less costly or easier to provide.
How does the ADA work?
The ADA has many rules for ensuring accessibility for the disabled. It is best understood by breaking it down into packages. The original legislation submitted five specific titles that help outline regulation and authority in regards to the act. Each title has specific language and goals that help businesses and authorities understand their responsibilities. Lawsuits and additional legislation have altered the titles over time, but a simple overview is still possible.
As mentioned above, Title I requires reasonable accommodations for disabilities. Those accommodations are to be provided by the employer, and they must be available to both employees and applicants. Accommodations could include wheelchair access and services like providing interpreters. Title I also regulates medical examinations and medical information requests.
Title II applies specifically to public services. This includes all local and state government agencies, commuter authorities, and any other public service. Public services regulated by Title II cannot deny services on the basis of disability. In particular, any program that is accessible to individuals without disabilities must also be accessible to those with disabilities. Additionally, all public transportation must be accessible.
This title regulates public accommodations. This includes restaurants, grocery stores, retail stores, etc. Publicly owned transportation is also covered by Title III. In short, all new construction has to be accessible, and existing facilities have to remove barriers wherever possible.
Title IV specifies that telecommunications must accommodate the deaf.
Often called the miscellaneous provision, Title V prohibits coercing, threatening or retaliating against people with disabilities.
The ADA and your business website
The original provisions of Title II don’t exclude website regulation; however, the rules are not precise. The best way to ensure compliance with your website is to audit it for accessibility. Website navigation and communication are the keys. Someone with vision impairment should be able to use every feature and access all information. Similarly, any audio presentation should be available in writing (closed captioning on videos is a common fix). Finally, make sure you provide channels for feedback.
What is covered under the ADA?
The primary aim of the ADA, and specifically Title I, is to prevent people with disabilities from being discriminated against in any way during any part of employment, including recruitment, hiring, onboarding, training, salary, benefits and job duties. It also requires that employers provide reasonable accommodations based upon the needs of the individual.
The ADA applies to all employers with 15 or more employees and includes private employers as well as state and local government employers, employment agencies, labor organizations, and labor-management committees.
Here are three key things employers need to know about the ADA:
Employers can't ask for medical information related to the employee's disability. Title I of the ADA applies to all aspects of employment, including recruitment, interviewing, hiring, and on the job activities and benefits. It also protects employees from sharing personal medical information with their employers concerning their disability. Under Title I of the ADA, employers may not ask job applicants about the existence, nature or severity of their disability, nor may they make employment conditional on a medical examination for only that employee (if the employer wishes to have that as a condition of employment, it must be required for all employees).
Employers can't retaliate against employees. The ADA prohibits retaliation against an individual for opposing employment practices that discriminate based on a disability or for filing a discrimination charge, testifying or participating in any proceeding under the ADA.
- Employers must ensure facilities are accessible. Title III of the ADA prohibits discrimination on the basis of a disability in regard to access to public places such as restaurants, movie theatres, schools, office buildings, warehouses and factories. All public places must be accessible in accordance with the guidelines laid out in Title III, such as having wheelchair ramps, Braille signage or closed captioning.
Why is the ADA important?
It is important for small businesses to understand the ADA for a few reasons. First and foremost, it is required by federal law and can result in serious consequences if it is violated, such as fines or costly legal fees if you are sued.
Second, making a sincere and concentrated effort to be as compliant with the ADA and inclusive of people with disabilities goes a long way in making your employees feel valued and supported at work.
Additionally, a 2018 study by Accenture in partnership with the American Association of People with Disabilities and Disability: IN reports that businesses that actively seek to employ people with disabilities outperform businesses that do not. Their revenues were 28% higher, net income was two times more, and profit margins were higher by 30%. Additionally, the Department of Labor found that employers who embraced disability as part of their recruitment and hiring efforts saw a 90% increase in employee retention.
How your business can be ADA compliant
There are many aspects to the ADA, though not all of them pertain to employment. The most important titles of the ADA you as an employer should be concerned about are Title I, regarding employment, and Title III, regarding accessibility. A business being ADA compliant might involve:
- Being willing and able to provide reasonable accommodations
- Having written policies on accommodations, performance expectations and disability-related leave
- Allowing and enabling the use of service animals or mobility devices
- Making adjustments to operating procedures, job duties or policies
If you are building a new office or facility, or are undergoing renovations, you have the opportunity to make your building entirely accessible from the start.
"I would recommend contacting a builder knowledgeable about the ADA to help with new construction or necessary renovations," said Tina Willis, personal injury attorney and owner of Tina Willis Law.
If you are unsure about what you can do to be compliant and better serve your employees with disabilities, it might be helpful to consult a professional.
"The ideal way for small businesses to comply with the ADA is to consult with an employment defense lawyer who specializes in the ADA," said Willis. "Generally, consulting a lawyer on a preventative basis is much more cost-effective than hiring a lawyer to defend a lawsuit."
Willis also recommended that employers
- Be mindful of their words and actions during the hiring process.
- Train managers and employees regularly regarding discrimination and how to provide reasonable accommodations when requested. Document these training sessions.
- Ensure your employee handbook covers ADA discrimination and accommodation requests. If you're able, have an employment defense attorney review this part of the handbook.
- If you receive a request for accommodation from an employee, you can contact the Job Accommodation Network (JAN) for free guidance on how to provide affordable accommodations.
- Fully investigate all employee complaints of disability-based discrimination. Document every step of the process.
- Document every action you take in order to be ADA compliant, including training, reaching out to JAN, discrimination investigations or implementation of accommodations.