You may know from reading this blog on a regular basis that the ADA Amendments Act (ADAAA) was passed in 2008 to “reinstate a broad scope of protection” by expanding the definition of the terms “disability” and “major life activities”.  I read the Amendments Act and found myself glad that I am surrounded by a staff of labor attorneys who can interpret the Act and provide legal advice to our clients.  However, in my role as an HR Consultant with S&J, I thought it might be helpful to provide you with a few basic facts that are covered in the law and explain how they may be practical in your day-to-day business.

Some ADA Basics:

1)         The ADA only covers those employers with 15 or more employees.  Therefore, it may not apply to your small company;

2)         The EEOC considers temporary employees sent to your office by employment firms covered by the ADA.  That means that even if they are not on your payroll, you may be required to provide a requested accommodation if it is not deemed to be a undue hardship to your company;

3)         A reasonable accommodation does not mean that you have to provide the exact accommodation requested by an employee or his/her physician, nor do you have to bump one employee to accommodate another.  Furthermore, as an employer you are not required to lower your quality or production standards to make a reasonable accommodation;

4)         As an employer, you do not have to provide a reasonable accommodation if it imposes an “undue hardship” on your firm  In this case the definition of an undue hardship is “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.”  In other words, if you are a small employer with limited resources, you are not expected to spend large amounts of money to meet a reasonable accommodation;

6)         An employer generally does not have to provide a reasonable accommodation unless an individual with a disability has asked for one;

7)         Granting extended leave to an employee is considered a form of reasonable accommodation.  Thus, even if the employee has used up his sick leave, Family and Medical Leave Act (FMLA) leave, and vacation leave, you still may need to grant additional leave for employees with disabilities.

8)         The ADA requires that all medical records be kept confidential, away from the general personnel files and only accessible to those who “have a need to know” the contents of the files.  I recommend a completely separate locked cabinet that only appropriate members of the HR staff have access to;

9)         When holding an interview, employers may not ask job applicants about the existence, nature or severity of a disability, however, you can ask about the ability to perform specific job functions, as long as they are listed in the position description.  In an interview it is not appropriate to ask if a candidate if he/she has a bad back, but perfectly reasonable to ask if he/she can lift 100 lbs ( again assuming that this one is one of the primary functions listed in the job description);

10)       It is okay to condition a job offer on the passing of a medical exam and an offer can be revoked if the physical exam is failed – provided that an examination is required for all entering employees in similar jobs; and lastly,

11)       The federal government provides tax incentives to encourage the employment of people with disabilities.  These include the Small Business Tax Credit (IRS Code Section 44); the Work Opportunity Tax Credit (IRS Code Section 51) and the Architectural/Transportation Tax Deduction (IRS Code Section 190).  If you are an employer who has made an accommodation for a disabled employee, I recommend you check with your tax advisor to see if you are eligible for any of these deductions.

Ann Kontner is a former senior human resources executive with vast experience in all facets of the HR field. She brings to S&J over 25 years of HR experience in corporate compliance, administrative management, staff development and executive leadership skills. She has worked for a wide range of employers including both public and privately held corporations, federal government contractors, and has experience working in both domestic and international markets.
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