The Americans with Disabilities Act of 1990

Unions Fighting for a better life for all people.

The Americans with Disabilities Act (ADA), which was passed in 1990, prohibits discrimination against people with disabilities in employment and in public services, public and private transportation, public accommodations and telecommunications services. The intent of the ADA is to remove the artificial barriers that prevent disabled people from achieving economic self-sufficiency and full participation in American society.

Consistent with their commitment to civil rights, unions were among the most vocal supporters of the ADA and the benefits it brings to workers. The ADA gives us one more tool to help our brothers and sisters have equal job opportunities, retain their jobs and return to their workplaces. The objective of this brochure is to summarize the employment provisions of the ADA and enable unions to represent and protect their members, including those with disabilities, effectively.

Who must comply with the ADA?

The ADA covers employers and unions, including:Private employers with 15 or more employees.

1. Employment agencies.
2. State and local governments.
3. The U.S. Congress and other entities in the federal legislative branch(The executive branch of the federal government is covered by the Rehabilitation Act of 1973.)
4. Labor organizations.
5. Joint labor-management committees.

Who is protected by the ADA?

The question of whether a person is considered "disabled" under the ADA is determined on a case-by-case basis, without relying on particular names or types of disabilities and illnesses. The ADA's definition of "disability" is also different from those of other statutes that deal with disabled people, such as SSI or workers' compensation. An individual has a "disability" for purposes of the ADA if he or she:

1. Has a physical or a mental impairment, either apparent or "hidden," that substantially limits one or more of the person's major life activities. (Examples of apparent disabilities include limits on the ability to do manual tasks, walk, see or speak; examples of hidden disabilities include HIV / AIDS, hearing impairments or potentially limiting conditions controlled with medication, such as diabetes or epilepsy);
2. Has a record of such an impairment (such as cancer in remission, a history of mental illness or a severe injury at a previous workplace); or
3. Is regarded as having such impairment (for example, conditions that people mistakenly perceive as limiting, such as disfigurement, or that employers believe may cause negative public reaction, such as severe bums).

To be protected under the ADA, a person with a disability must be able to perform the "essential functions" of the position, with or without "reasonable accommodation."

The U.S. Supreme Court has ruled that the determination of whether a person has a "disability" as defined by the ADA must take into consideration any mitigating measure(s) the person uses, such as medication, prosthesis or a hearing aid. A person

who experiences no substantial limitation in any major life activity when using a mitigating measure does not meet the ADA's first definition of "disability" (a physical or mental impairment that substantially limits a major life activity).

The Supreme Court emphasized that the determination of whether a person has a "disability" must be made on a case-by-case basis.

The Supreme Court also emphasized that the disability determination must be based on a person's actual condition at the time of the alleged discrimination. Therefore, if a person with a disability did not use a mitigating measure at that time, determination must be made whether s/he was substantially limited in a major life activity based solely on his/her actual condition.

The ruling came in June 1999 in three major cases:

For further clarification and guidance on determining whether a person has an ADA "disability," the AFL-CIO Department of Civil and Human Rights recommends reading the U.S. Equal Employment Opportunity Commission's "Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing 'Disability' and 'Qualified.' " You may access the EEOC website at www.eeoc.gov or call the AFL-CIO Civil and Human Rights Department at 202-637-5270.

Who is not protected by the ADA?

People who generally would not be considered "disabled" under the ADA's definition include:

1. Workers with temporary disabilities, such as sprains or breaks.
2. Workers with minor illnesses, like the flu or appendicitis.
3. Current illegal drug users. However, the ADA does protect alcoholics and former drug addicts who have completed or are participating in a drug rehabilitation program.

The ADA does not encourage, prohibit or authorize tests to determine the illegal use of drugs. The ADA allows employers to prohibit the illegal use of drugs and the use of alcohol in the workplace, to prohibit being under the influence of alcohol or drugs (illegally taken) and to expect conformance with the standards of the Drug Free Workplace Act of 1988. Most important, the law permits an employer to hold alcoholic employees or employees recovering from drug addiction to the same standards for employment and performance as other employees, even if any unsatisfactory performance is related to the illegal use of drugs or alcoholism.

The ADA does not affect current alcohol and drug use regulations issued by the U.S. Departments of Transportation and Defense and the Nuclear Regulatory Commission.

If a collective bargaining agreement sets the terms on tolerance of alcohol and drug use in the workplace, the ADA requirements may or may not be in conflict with these terms. Three points of clarification might prove helpful. First, former drug addicts who have completed or are participating in a drug rehabilitation program are protected by the ADA, but persons who currently engage in the illegal use of drugs are not. Second, former and recovering alcoholics must be provided reasonable accommodation (such as a modified work schedule to attend Alcoholics Anonymous meetings) if they can meet expected performance standards. Third, the ADA does not expect an employer to pay for drug rehabilitation as a form of reasonable accommodation for a current drug user; but, if reasonable and not an undue hardship, the employer may be expected to support rehabilitation for an active alcoholic.

If a person meets the definition of "disability" but cannot do the "essential functions" of the job, that person is not "qualified" and is not protected by the ADA.

What are the "essential functions" of a job?

The essential functions of a job are the basic duties of the employment position. Because job descriptions often are not up to date or utilized, it may be helpful to have the union analyze the "essential" and "marginal" functions of the job as it is being performed. The Union may want to consider:

1. The reason the position exists.
2. The degree of expertise or skills required to perform that function.
3. Whether a written job description prepared before advertising or interviewing applicants for the job lists that function.
4. The amount of time spent doing the function.
5. The consequences of not doing the function.

The employer's judgment will be considered when determining which functions of a job are essential, as will the relevant terms of a collective bargaining agreement.

What rights do disabled workers have under the ADA?

The ADA prohibits employers from discriminating against qualified individuals with disabilities in all areas of employment, such as:

1. Recruitment
2. Rates of pay
3. Hiring
4. Dismissal
5. Promotions
6. Job assignments
7. Training
8. Leaves of absence
9. Layoffs Benefits
10. Any other terms, conditions or privileges of employment.

Employers also are prohibited from discriminating against a person because of his or her association or relationship with a person with a disability, such as a daughter suffering from cancer or a partner who is HIV positive.

Specifically, the Act prohibits:

1. Denying equal job opportunities or benefits to a qualified individual with a disability.
2. Using qualifying standards, employment tests or other criteria that screen out an individual or class of persons with a disability, unless the standard, test or other selection criterion or exam is related to the position and is consistent with business necessity. (Giving a written exam to a blind applicant, who does not need to be able to see to do the particular Job, for example, would be prohibited.)
3. Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless such accommodations would impose "undue hardship" on the operation of the business.
4. Limiting, classifying or segregating any job applicant or employee because of a disability in away that adversely affects the applicant's opportunity or status.
5. Participating in any contract or other relationship that results in discrimination against qualified applicants or employees because of disability (for example, contracting with a hotel that is not accessible to members with disabilities to hold a training program or conference).
6. Retaliation against anyone for asserting his or her rights under the ADA.

Employers are not required to prefer people with disabilities, create jobs for people with disabilities, bump anyone or maintain any sort of quota for employees who have disabilities.

What is "reasonable accommodation"?

Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified individual with a disability to participate in the job application process, do the essential functions of a job or enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. An employer is required to provide reasonable accommodation for the known physical or mental limitations of a qualified person with a disability, unless doing so creates an "undue hardship." Depending on the particular facts and circumstances, reasonable accommodations could include:

1. Purchasing or modifying equipment or assistive devices.
2. Restructuring a job.
3. Offering part-time or modified work schedules.
4. Reassigning an employee to an appropriate vacant position.
5. Adjusting or modifying employment tests.
6. Writing new training materials or policies.
7. Providing readers or interpreters-
8. Making the workplace readily accessible and usable by people with disabilities.
9. Allowing an employee to work at home.

Specific examples of reasonable accommodations include installing ramps, using bricks to elevate a desk, changing work schedules so a worker may take special transportation and allowing a worker with dyslexia to take an oral exam, if related to the job.

Reasonable accommodation also may include reassigning a current employee to a vacant position if the person's disability prevents performance of his or her original job. Some unions have negotiated "light duty" positions to retain a union member in employment or enable him or her to recover from a disability.

What is "undue hardship"?

Undue hardship means that an accommodation would require significant difficulty, expense, disruption or fundamental alteration of the business, considered in light of factors that include:

1. The nature and cost of the accommodation {taking into account available tax benefits or outside funding).
2. The overall financial resources of the facility and the employer.
3. The number of persons employed at the facility and by the company.
4. The effect on expenses and resources or other impact of such accommodation on the operation of the facility.
5. The number, type and location of the employer's facilities.
6. The composition, structure and functions of the employer's workforce.

An employer need not provide accommodations that would result in undue hardship.

Many reasonable accommodations will be simple and inexpensive. In addition, some workplaces have found that accommodations for a person with a disability {such as the use of dollies to carry heavy items) can benefit other employees, make the company more productive and prevent other workers from being injured.

What about safety concerns?

Employers can establish standards that exclude workers with disabilities who pose a "direct threat" or significant risk of substantial harm to the health or safety of themselves or others, unless that risk can be removed by reasonable accommodation. An employer may not assume that a threat exists. It must be established by medical judgment or on the best available objective evidence-not on subjective perceptions, irrational fears, patronizing attitudes or stereotypes. Employers generally cannot impose blanket disqualification based on a disability, unless the disability would pose an unacceptable danger to the employer and others.

An employer must meet very specific and stringent requirements under the ADA to establish that a direct threat exists. An employer must be able to:

1. Demonstrate a significant risk of substantial harm.
2. Identify the specific risk, including its duration as well as the nature, severity, likelihood or imminence of the potential harm.)
3. Show that the risk is imminent.
4. Show that the assessment of risk is based on objective medical or other factual evidence.

Even if a genuine, significant risk of substantial harm exists, an employer is expected to consider whether, with reasonable accommodation, the risk can be eliminated or reduced below the level of a direct threat.

What about psychiatric illnesses?

The ADA specifically protects workers with "mental impairment." Examples of emotional and mental illnesses include major depression, bipolar disorder, anxiety disorders, schizophrenia and personality disorders. As with physical illness, the impairment must substantially limit a major life activity. This is determined without regard to the positive effects of medications that the employee may be taking.

What can employers ask about disabilities? Can they require medical exams?

An employer cannot ask questions about disabilities before making an offer of employment (including questions about an individual's workers' compensation history) except in these circumstances:

At the application stage, if the applicant has an apparent disability or voluntarily shows a hidden disability, the employer may ask the applicant if she or he can perform the essential functions of the job with or without reasonable accommodation.

After making an offer, and before the worker begins the job, the employer can require a medical examination and take a medical history or inquiry as a condition of employment. Employers are allowed to do this only if the exam is required for all employees in the same job category despite disability and the information is kept confidential.

During employment, when an inquiry or medical exam of an employee is job-related and consistent with business necessity. (Stewards may want to check if other employees in the same or similar circumstances have been asked to undergo exams.) This requirement may be met when an employer reasonably believes that an employee's ability to perform essential job functions has become impaired by a medical condition, or an employee now poses a direct threat because of a medical condition.

How are health insurance policies affected?

An employer cannot deny insurance to an employee with a disability, refuse to hire an applicant with a disability or fire a disabled employee (or an employee with a dependent who is disabled) for fear that health insurance costs will increase. Employees with disabilities must be given equal access to whatever health insurance coverage the employer provides to other employees. However, employers may continue to offer policies that limit or exclude payment for pre-existing conditions, even if such policies adversely affect individuals with disabilities, as long as this is not used to evade the purposes of the ADA. An employer also may continue to provide health insurance plans that limit coverage for certain procedures (such as limits on the number of blood transfusions), even if these restrictions adversely affect employees with disabilities, since the restrictions are applied to all employees.

What can co-workers do for people with disabilities?

Some people may feel uncomfortable around people with disabilities. Workers without disabilities may avoid looking at or talking to people with disabilities. They may feel that people with disabilities are helpless and dependent, and make assumptions about what people with disabilities can or cannot do. To help ease those difficulties:

1. Ask the disabled person how you should act or communicate, if you feel doubtful or uncomfortable about your actions.
2. Look directly at the person when addressing him or her.
3. Do not equate disability with intellectual limitation.
4. Offer assistance to the person, but do not automatically assume that he or she needs or wants assistance.
5. Be considerate of the extra time it might take for a person with a disability to finish a sentence or complete a task.
6. Try to avoid offensive language. Instead of "handicapped," say "person with a disability." Instead of "normal," "healthy" or "able-bodied," say "not disabled" or "without a disability."
7. Think about what the disabled person can do, rather than what he or she cannot do.
8. Remember that you or a member of your family could one day become disabled.

What can unions do to help?

Under the National Labor Relations Act (NLRA), the union owes a duty of fair representation to all members.

1. Be aware of and sensitive to the needs of your members who have disabilities.
2. Make union activities and facilities accessible to workers with disabilities.
3. Post notices describing the ADA in places and formats that are accessible to job applicants, employees and union members. Develop disability education programs for management and union members.
4. Review the terms of collective bargaining agreements to identify any provisions that could be considered discriminatory on the basis of disability. Include specific protections against disability discrimination in collective bargaining agreements. Ensure that the agreement allows members to file both a grievance and a lawsuit under the ADA.
5. Create a cooperative relationship with the employer on the issue of members with disabilities. Consider establishing a joint labor-management committee.
6. Work with the employer to conduct a job analysis for all positions to determine which job functions are "essential" and which are "marginal."
7. Determine what each job requires in terms of physical and other skills, education, training and other characteristics. The analysis also should include the timespent performing a function and the consequences of not performing it.
8. Qualification standards that are not related to "essential" functions but are criteria for "marginal" functions should be indicated as "preferences."
9. Work with the employer to identify and establish networks with private and governmental resources, such as vocational rehabilitation organizations, which can assist in the process of providing an accommodation.

Once a request for an accommodation has been made, work with the employee and employer to identify the essential and marginal functions of the job, the barriers to performance of the job and potential accommodations. Evaluate whether the proposed accommodations are consistent with the collective bargaining agreement, how they would affect other members of the bargaining unit and whether they would create an "undue hardship."

What about conflicts with collective bargaining agreements?

Many reasonable accommodations under the ADA-like changes in shifts and transfers-may involve matters that are governed by seniority systems or provisions of collective bargaining agreements.

Some of the important questions in resolving this issue are:

1. Does the contract provision contain any exceptions?
2. Have any exceptions been made in practice?
3. Will other employees be harmed if the accommodation is granted?
4. Can other accommodations be provided without violating the rights of other workers?

To the extent that a reasonable accommodation does not affect terms and conditions of employment (such as a ramp or an interpreter), the employer does not have to negotiate with the union. According to the NLRA, the union must be part of the process where the reasonable accommodation would cause a material, substantial or significant change. In any case, it is always better to consult with both the person with the disability and the union.

What can victims of ADA discrimination do?

1. Keep a written record of all incidents regarding discriminatory behavior, including what was said, and the time, place and witnesses, if any.
2. Check with others in the workplace who might also be victims.
3. Contact your union for assistance.
4. File a complaint with the Equal Employment Opportunity Commission (EEOC).

How can an ADA discrimination charge be filed?

A lawyer is not needed to file a discrimination charge. The EEOC and state human rights commissions provide personnel who will assist with the complaint application and process it. If aright to sue letter is issued, the charging party has the right to seek redress of his or her complaint through the courts. All employment discrimination charges must be filed with the EEOC within 180 days of the alleged discriminatory act.

In states or localities with anti-discrimination laws and agencies authorized to grant or to seek relief, a charge must be presented to that state or local agency. In such jurisdictions, charges may be filed with the EEOC within 300 days of the discriminatory act, or 30 days after W receiving notice that the state or local agency has terminated its processing of the charge, whichever is earlier.

What remedies are available under ADA?

ADA provides the same remedies that are available for race, gender, national origin and religious discrimination. They include:

1. Reinstatement
2. Seniority rights
3. Hiring
4. Back pay
5. Reassignment
6. Other compensation and benefits
7. Promotion
8. Punitive and compensatory damages
9. Training
10. Reasonable attorney's fees

What is the relationship between the ADA and other laws involving sick, injured and disabled workers?

Workers' compensation

While the ADA is limited to employers with 15 or more employees, state or federal workers’ compensation laws cover most workers. Workers' compensation is limited to injuries or illnesses that arise out of or in the course of employment; the ADA covers qualifying disabilities that occur due to conditions both on and off the job.

The ADA may not cover many injuries and illnesses that are compensable under workers’ compensation. However, work related disabilities would be covered by the ADA if the individual's condition "substantially limits a major life activity," if the individual has a "record of' having such an impairment or if the individual's employer "regards" him or her as having a disability.

The ADA requires that a worker with a covered disability be able to perform the "essential functions" of his or her job, with or without "a reasonable accommodation." While an employer is not required to create a "light duty" job as a reasonable accommodation, removal or reassignment of the marginal "heavy duty" functions of an existing job may be appropriate.

Application for or receipt of workers' compensation disability benefits does not prevent an injured worker from filing a discrimination charge under the ADA.

Family and Medical Leave Act (FMLA)

The FMLA is intended to protect the employment of workers who must take time off to care for their own medical needs or those of family members. It covers injuries and illnesses that occur both on and off the job. Covered employers, those with 50 or more employees, are required to provide up to 12 weeks of annual unpaid leave to employees (who have at least 12 months and 1,250 hours of service) due to their own or a family member's "serious health condition."

There are important differences between the FMLA, the ADA and workers’ compensation. Serious health conditions under the FMLA mayor may not meet the definition of disability under the ADA. The FMLA, unlike the ADA or workers' compensation, guarantees the worker the right to return to the same or an equivalent job at the end of the leave. The FMLA-but not the ADA or workers' compensation requires that the employee's coverage under any group health plan be continued on the same basis as if the employee had been employed continuously during the leave period.

Employers are allowed to consider an employee's FMLA leave in determining whether additional leave—requested as a "reasonable accommodation" under the ADA—would be an "undue hardship" for ADA purposes.

Occupational Safety and Health Act (OSHA)

The Occupational Safety and Health Act requires employers to provide their workers with employment and a place of employment free from recognized hazards that are causing or are likely to cause serious harm or death. OSHA also requires employers to comply with safety and health standards set by the U.S. Secretary of Labor.

Workplace deaths and injuries cost the nation billions of dollars. Opponents of strong workplace safety laws traditionally complain about the cost of compliance. The price tag on death and injury is much higher.

Remembering OSHA regulations when identifying reasonable accommodations has proven to be not only cost effective, but also has improved production and the safety of other workers.

National Mental Health Parity Act (MHPA) of 1996

The ADA states that employers may continue to offer policies that limit or exclude payment for pre-existing conditions, even if such policies adversely affect individuals with disabilities. An employer's health insurance plan, for example, might limit the number of blood transfusions or X-rays that it will pay for, even though this may have an adverse effect on individuals with certain disabilities such as diabetes or hemophilia. There also might be a lower level of benefits for the treatment of mental or nervous conditions or "eye care." Such limiting insurance clauses cannot be used as a subterfuge to evade the purposes of this part of the law.

Under the ADA, health related insurance distinctions that are based on disabilities such as deafness, AIDS, cancer, kidney disease, major depression, bipolar disorder or schizophrenia may violate the ADA. For example, it is illegal for a health insurance plan to cap benefits for the treatment of all physical conditions, except AIDS, at $100,000 per year and the treatment of AIDS at $5,000 per year. The lower AIDS cap violates the ADA because it is disability-based distinction. However, a broad distinction between "mental/nervous" conditions and physical conditions is not disability-based because it applies to individuals with and without disabilities as well as to a multitude of dissimilar conditions.

The MHPA provides for parity in the treatment of mental illness and applies to employers with 51 or more employees. Under MHPA, group health plans, insurance companies and HMOs offering mental health benefits no longer will be allowed to set annual or lifetime dollar limits on mental health benefits that are lower than dollar limits established for medical and surgical benefits. MHPA's provisions, however, do not apply to benefits for substance abuse or chemical dependency. Under MHPA, health plans are not required to include mental health in their package. The requirement for parity applies only to plans offering mental health benefits. Even so, plans still will be able to set the terms and conditions (such as cost sharing and limits on the number of visits or days of coverage) for the amount, duration and scope of mental health benefits. Any group whose costs increase 1 percent or more due to the application of MHPA's requirements may claim an exemption from those requirements.