2022 has brought a new set of challenges and opportunities.
Business owners are having to navigate new hybrid work arrangements, ongoing supply chain issues, ever-changing Covid protocols and inflation, all while working to retain and engage good employees. Keeping your business compliant can feel overwhelming in the midst of it all, so we’re here to make understanding policies simple.
We love helping business owners ensure their organizations are running efficiently and effectively, so we are going to review one of the most important (and frequently misunderstood!) employer policies: the Americans with Disabilities Act.
What is the Americans with Disabilities Act (ADA)?
The Americans with Disabilities Act (ADA) is a law that safeguards individuals with disabilities to help them experience the same rights and opportunities in the workplace as other employees. It was first signed into law on July 26, 1990. Since then, July 26th has been celebrated as National Disability Independence Day.
Below we share 7 common myths about the ADA, along with a few helpful resources, from the U.S. Department of Labor.
Keeping your business compliant with laws like the ADA can be overwhelming and time consuming. If you’d prefer a professional team of skilled HR experts to keep your business compliant for you, give us a call at 877-753-0970 or contact us on our website here.
7 Myths To Dismiss: The Americans With Disabilities Act
Myth 1: Under the ADA, employers must give people with disabilities special privileges, known as accommodations.
[full_width]Fact: Accommodations are not equivalent to special privileges. [/full_width]
Reasonable accommodations are intended to ensure that qualified individuals with disabilities have rights in employment equal — not superior — to those of individuals without disabilities.
A reasonable accommodation is a modification, not a special privilege.
Under the ADA, modifications to a job, work environment or the way work is performed allow an individual with a disability to apply for a job, perform the essential functions of the job, and enjoy equal access to benefits available to other individuals in the workplace.
Myth #2: The ADA places a financial burden on small businesses that cannot afford to make accommodations for individuals with disabilities.
[full_width]Fact: The ADA aims to protect small businesses from severe financial hardship. [/full_width]
Businesses with fewer than 15 employees are not covered by the employment provisions of the ADA.
For employers required to follow the ADA guidelines, they do not have to provide a reasonable accommodation that would cause an “undue hardship” to their business.
The ADA defines undue hardships as actions requiring significant difficulty or expense based upon factors like an organization’s size, financial resources and the nature and structure of its operation.
Myth #3: The ADA is frequently misused by people with vague complaints or diagnoses.
[full_width]Fact: False complaints might be on the front page, but their dismissal is often unadvertised. [/full_width]
While claims by people with false or minor conditions may get the media spotlight, the reality is that these complaints are usually dismissed.
If an individual files a complaint of discriminatory treatment, denial of accommodation or harassment, and does not have a condition that meets the ADA definition of a disability, the complaint is dismissed.
The ADA is most often used for people with true disabilities who need reasonable modifications to be successful in their job.
Myth #4: The employee completed their 12 weeks of FMLA leave, but isn’t released to return to work, so now they can be fired.
[full_width]Fact: Extended leave might be required if it’s a reasonable accommodation. [/full_width]
The ADA requires that employers make exceptions to their policies, including leave policies, in order to provide a reasonable accommodation to employees with disabilities.
Although employers are allowed to have leave policies that establish the maximum amount of leave an employer will provide, they may have to provide leave beyond this amount as a reasonable accommodation.
Unless the employer can show that granting additional leave will cause an undue hardship, they may have to do so for employees who require it because of a disability.
Myth #5: The employee has not been employed for a year so they are not eligible for FMLA or six to eight weeks of leave after child birth.
[full_width]Fact: Employers must enable employees with disabilities to work, even if it requires adjustments to existing policies. [/full_width]
Although requests for disability related leave often fall under existing employer policies, the employer is still obligated to provide individuals with disabilities access to those policies on equal terms as similarly situated employees.
Employers are not required to provide paid leave beyond their paid leave policy, but they must consider providing unpaid leave to an employee with a disability, as a reasonable accommodation, if the employee requires it.
Leave is a reasonable accommodation when it enables an employee to return to work following their period of leave.
Myth #6: Under the ADA, an employer may require a Covid-19 viral test or a Covid-19 antibody test before permitting employees to enter the workplace.
[full_width]Fact: Yes and No. [/full_width]
If employers can demonstrate that viral testing of employees is “job related and consistent with business necessity”, then viral testing for Covid-19 is permitted when evaluating an employee’s initial or continued presence in the workplace.
Antibody tests do not show whether an employee has a current infection, so can not be used to determine whether an employee can enter the workplace, as it does not meet the ADA’s requirement that medical examinations must be job related and consistent with business necessity.
Myth #7: Employees can refuse to answer questions about whether the employee has Covid-19, or has been tested for Covid-19, or has symptoms associated with Covid-19.
[full_width]Fact: Employers can require Covid-19 information when entering their physical workplace. [/full_width]
Under the circumstances existing currently, the ADA allows an employer to bar an employee from physical presence in the workplace if the employee refuses to have a temperature reading taken or refuses to answer questions about whether the employee has Covid-19, has symptoms associated with Covid-19, or has been tested for Covid-19.
We hope this has helped you better understand the ADA, and set straight any myths you may have heard about ADA compliance.
Learn more about how we can help you take your human resources function and make it compliant, efficient and aligned with your business strategy here, or contact us here.
Navigating all the components of the ADA can feel overwhelming, but there are many resources available to help you understand your responsibilities as an employer. Check out the list of links below, courtesy of the U.S. Department of Labor, for more information!
Additional Resources:
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[accordion_section title=”Job Accommodation Network (JAN)”]
Job Accommodation Network (JAN)
www.AskJAN.org
1-800-526-7234 (V/TTY)
JAN is a free, confidential service from the U.S. Department of Labor’s Office of Disability Employment Policy that provides individualized accommodation solutions and technical assistance on the ADA.
JAN can address areas like:
- Accommodation options and low-cost solutions
- Hiring, retaining and promoting qualified employees with disabilities
- Employer responsibilities under the ADA
- Accessibility issues, including accessible technology
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[accordion_section title=”Equal Employment Opportunity Commission (EEOC)”]
Equal Employment Opportunity Commission (EEOC)
www.eeoc.gov
1-800-669-4000; 1-800-669-6820
The EEOC enforces the ADA’s employment provisions. The link below provides facts, definitions and Q&A regarding the ADA.
https://www.eeoc.gov/disability-discrimination
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[accordion_section title=”The Department of Labor (DOL)”]
The Department of Labor (DOL)
The link below covers topics including employee rights and employer responsibilities.
https://www.dol.gov/general/topic/disability
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[accordion_section title=”U.S. Department of Jusice (DOJ) ADA Home Page”]
U.S. Department of Justice (DOJ) ADA Home Page
www.ada.gov
800-514-0301 (V); 800-514-0383
The ADA Home Page includes many excellent resources for employers. The “ADA Business Connection” section of the site even includes business briefs and tax incentive information.
ADA information, training and technical assistance across the nation.
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[accordion_section title=”Americans with Disabilities Act National Network”]
Americans with Disabilities Act National Network
www.adata.org
1-800-949-4232
The Americans with Disabilities Act National Network, sponsored by the U.S. Department of Education’s National Institute on Disability, Independent Living, and Rehabilitation Research, consists of 10 regional centers and an ADA Knowledge Translation Center which provide
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