How to Ensure Compliance With the ADA

The Americans With Disabilities Act (ADA) is one of the signature achievements of American anti-discrimination law, opening the workplace to millions of workers whose disabilities would have excluded them in prior eras and paving the way for greater social acceptance of individuals with differing abilities. But achieving compliance with the requirements of the ADA can be difficult, especially for smaller employers, and navigating its provisions is often anything but straightforward. Here, our Norfolk employment lawyers walk through some best practices to ensure compliance with the ADA and avoid disability discrimination.

Check to See if You’re Covered

If you’re operating a business in the United States, you’re likely covered. The ADA covers all public-sector and private-sector enterprises with at least 15 employees, thereby encompassing all but the smallest of employers.

Identify Who Is Protected by the ADA

The ADA protects individuals who have a disability within the meaning of the statute. An individual with a disability is a person who:

Has a physical or mental impairment that substantially limits one or more major life activities;
Has a history or record of such an impairment; or
Is perceived by others as having such an impairment

Whether a disability “substantially limits” one or more major life activities is often a matter of interpretation. Employers should make individualized assessments of whether an employee or potential hire impairment can fairly be considered substantial. When making such determinations, employers may (but are not required to) request medical documentation evincing the disability.

Even if an employee or potential hire meets this definition, they must also be qualified to perform the essential functions or duties of the job, either with or without a reasonable accommodation. In other words, the employee must still meet the employer’s requirements (e.g., education, experience, skills, etc.) and be able to perform the job satisfactorily. Contact one of our Norfolk employment lawyers for further information about the applicability of the ADA.

Understand What “Reasonable Accommodations” Are

A hallmark feature of the ADA is that it requires employers to make “reasonable accommodations” for employees with disabilities. Generally, a reasonable accommodation is a change or adjustment to a job or working environment that allows an otherwise qualified individual with a disability to participate in the application process, perform the essential functions of a job, to enjoy the benefits and privileges of employment. Reasonable accommodations fall into three primary categories, according to guidance from the Equal Employment Opportunity Commission:

Modifications or adjustments to the employment application process that enable a qualified applicant with a disability to be considered
Modifications or adjustments to the workplace environment or to the manner or circumstances by which the position is customarily performed that enable a qualified individual with a disability to perform the essential job functions of that position
Modifications or adjustments that enable a covered employee with a disability to enjoy equal benefits and privileges of employment on the same basis as those enjoyed by other similarly situated employees without disabilities

Examples of reasonable accommodations include job restructuring, making facilities accessible, part-time or modified work schedules, changing tests, training materials, or policies, and providing readers or interpreters.

Be Prepared to Prove “Undue Hardship”

The burden (i.e., cost) of providing reasonable accommodations falls on employers, and employers may not require employees to pay for such accommodations. This can cause problems for employers, depending on the nature of the accommodation sought and the resources on hand. Employers, in some cases, may not be required to provide a reasonable accommodation if doing so would amount to an “undue hardship.” However, generalized assertions that a particular accommodation would cause an undue hardship are not enough; employers must show a hardship based on an individualized assessment of current circumstances that show that a specific accommodation would result in significant difficulty or expense. As you might imagine, proving undue hardship can be tricky, which is why you should consider speaking to a Norfolk employment lawyer before attempting to do so on your own.

Fine-Tune Job Descriptions

As we covered above, qualified individuals with disabilities must be able to perform the “essential job functions” of a particular job. As such, when seeking compliance with the ADA, it is critical to identify both the essential and non-essential functions of each job. When determining the essential functions of a job, consider the following factors:

Whether the reason the position exists is to perform that function
The number of other employees available to perform that function
The degree of expertise or skill required to perform the function

Once you’ve identified the essential functions of a job, be sure to fully disclose them in the job description when seeking applicants.

Monitor Your Recruitment Process

The ADA covers both employees and applicants, meaning that you should also incorporate ADA considerations into your recruitment and hiring process. This could include:

Ensuring that online postings and application systems are accessible to people with visual disabilities
If you use a test, giving the test in a format or manner that does not require the use of an impaired skill
Allowing an applicant more time to complete a test, if needed
Conducting interviews in accessible locations
Providing readers or sign language interpreters
Allowing applicants to answer interview questions in writing
Conducting interviews virtually

Keep in mind that employers may not ask questions that are likely to reveal the existence of a disability before making a job offer even if the applicant’s disability is obvious or they have voluntarily disclosed it. However, you may ask such questions after extending a job offer, provided that you ask all applicants the same questions.

Create an ADA Compliance Plan With a Norfolk Employment Lawyer

ADA compliance is not a one-size-fits-all proposition; while you must tailor your plan to meet your company’s needs, it should also be broad enough to encompass a wide range of what-ifs. To create an ADA compliance plan to cover all your bases, consider working with an experienced attorney. To get started, contact a Norfolk employment lawyer at Pierce / Jewett by calling 757-624-9323 or using our online contact form.