Uncategorized

e-book Americans with Disabilities Act Technical Assistance Manual

Free download. Book file PDF easily for everyone and every device. You can download and read online Americans with Disabilities Act Technical Assistance Manual file PDF Book only if you are registered here. And also you can download or read online all Book PDF file that related with Americans with Disabilities Act Technical Assistance Manual book. Happy reading Americans with Disabilities Act Technical Assistance Manual Bookeveryone. Download file Free Book PDF Americans with Disabilities Act Technical Assistance Manual at Complete PDF Library. This Book have some digital formats such us :paperbook, ebook, kindle, epub, fb2 and another formats. Here is The CompletePDF Book Library. It's free to register here to get Book file PDF Americans with Disabilities Act Technical Assistance Manual Pocket Guide.

This case-by-case approach is essential if qualified individuals of varying abilities are to receive equal opportunities to compete for an infinitely diverse range of jobs. For this reason, neither the ADA, EEOC's regulations, nor this manual can supply the "correct" answer in advance for each employment decision concerning an individual with a disability. Instead, the ADA simply establishes parameters to guide employers in how to consider, and take into account, the disabling condition involved.

The information in this Manual is presented in an order designed to explain the ADA's basic employment nondiscrimination requirements. The first three chapters provide an overview of Title I legal requirements and discuss in detail the basic requirement not to discriminate against a "qualified individual with a disability," including the requirement for reasonable accommodation. The following chapters apply these legal requirements to specific employment practices and activities.

Readers familiar with Title I legal requirements may wish to go directly to chapters that address specific practices. However, in many cases, these chapters refer back to the earlier sections to fully explain the requirements that apply. The following summary of Manual chapters may be helpful in locating specific types of information. Provides a summary of Title I legal requirements with cross-references to the chapters where these requirements are discussed. Looks at the definitions of "an individual with a disability" and a "qualified individual with a disability," drawing upon guidance set out in EEOC's Title I regulation and interpretive appendix.

In addition, the second definition incorporates the ADA's basic employment nondiscrimination requirement, by defining a "qualified" individual as a person who can "perform the essential functions of a job. Provides guidance on the obligation to make a "reasonable accommodation," including why reasonable accommodation is necessary for nondiscrimination and what is required.

This chapter also provides many examples of reasonable accommodations for people with different types of disabilities in different jobs. The following chapters provide further guidance on making reasonable accommodations in the employment practices described in those chapters. Explains how to establish qualification standards and selection criteria that do not discriminate under the ADA, including standards necessary to assure health and safety in the workplace.

Provides guidance on nondiscrimination in recruitment and selection, including important ADA requirements regarding pre-employment inquiries. Among other issues, this chapter discusses nondiscrimination in advertising, recruiting, application forms, and the overall application process, including interviews and testing. Discusses ADA requirements applicable to medical examinations and medical inquiries, including the different requirements that apply before making a job offer, after making a conditional job offer, and after an individual is employed.

Discusses and illustrates the obligation to apply ADA nondiscrimination requirements to all other employment practices and activities, and to all terms, conditions, and benefits of employment. In particular, the chapter looks at the application of ADA requirements to promotion and advancement opportunities, training, evaluation, and employee benefits such as insurance. The chapter also discusses the ADA's prohibition of discrimination on the basis of a "relationship or association with a person with a disability.

Discusses ADA requirements related to employment policies regarding drug and alcohol abuse. Provides further guidance on ADA requirements as they relate to workers' compensation practices. This chapter of the manual provides a brief overview of the basic requirements of Title I of the ADA. Following chapters look at these and other requirements in more detail and illustrate how they apply to specific employment practices.

Private employers, state and local governments, employment agencies, labor unions, and joint labor-management committees must comply with Title I of the ADA. The ADA calls these "covered entities. An employer cannot discriminate against qualified applicants and employees on the basis of disability. The ADA's requirements ultimately will apply to employers with 15 or more employees. To give smaller employers more time to prepare for compliance, coverage is phased in two steps as follows:. Covered employers are those who have 25 or more employees or 15 or more employees , including part-time employees, working for them for 20 or more calendar weeks in the current or preceding calendar year.

The ADA's definition of "employee" includes U. However, the Act provides an exemption from coverage for any action in compliance with the ADA which would violate the law of the foreign country in which a workplace is located. Note that state and local governments, regardless of size, are covered by employment nondiscrimination requirements under Title II of the ADA as of January 26, See Coordination of Overlapping Federal Requirements below. The definition of "employer" includes persons who are "agents" of the employer, such as managers, supervisors, foremen, or others who act for the employer, such as agencies used to conduct background checks on candidates.

Therefore, the employer is responsible for actions of such persons that may violate the law. Religious organizations are covered by the ADA, but they may give employment preference to people of their own religion or religious organization. A church organization could require that its employees be members of its religion.

However, it could not discriminate in employment on the basis of disability against members of its religion. The legislative branch of the U. Government is covered by the ADA, but is governed by different enforcement procedures established by the Congress for its employees. Certain individuals appointed by elected officials of state and local governments also are covered by the special enforcement procedures established for Congressional employees.

Executive agencies of the U. Government are exempt from the ADA, but these agencies are covered by similar nondiscrimination requirements and additional affirmative employment requirements under Section of the Rehabilitation Act of Government, Indian tribes, and bona fide private membership clubs that are not labor organizations and that are exempt from taxation under the Internal Revenue Code.

The ADA prohibits employment discrimination against "qualified individuals with disabilities. An individual with a disability who meets the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job. To understand who is and who is not protected by the ADA, it is first necessary to understand the Act's definition of an "individual with a disability" and then determine if the individual meets the Act's definition of a "qualified individual with a disability.

The ADA definition of individual with a disability is very specific. A person with a "disability" is an individual who:. Individuals who currently use drugs illegally are not individuals with disabilities protected under the Act when an employer takes action because of their continued use of drugs.

This includes people who use prescription drugs illegally as well as those who use illegal drugs. However, people who have been rehabilitated and do not currently use drugs illegally, or who are in the process of completing a rehabilitation program may be protected by the ADA. The Act states that homosexuality and bisexuality are not impairments and therefore are not disabilities under the ADA. In addition, the Act specifically excludes a number of behavior disorders from the definition of "individual with a disability. Employers cannot discriminate against people with disabilities in regard to any employment practices or terms, conditions, and privileges of employment.

This prohibition covers all aspects of the employment process, including:. Reasonable accommodation is a critical component of the ADA's assurance of nondiscrimination. Reasonable accommodation is any change in the work environment or in the way things are usually done that results in equal employment opportunity for an individual with a disability. An employer must make a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would cause an undue hardship on the operation of its business.

An employer is not required to lower quality or quantity standards to make an accommodation. Nor is an employer obligated to provide personal use items, such as glasses or hearing aids, as accommodations. An employer is not required to provide an accommodation if it will impose an undue hardship on the operation of its business.

Americans with Disabilities Act (ADA) Requirements for Resurfacing Projects

Undue hardship is defined by the ADA as an action that is:. In determining undue hardship, factors to be considered include the nature and cost of the accommodation in relation to the size, the financial resources, the nature and structure of the employer's operation, as well as the impact of the accommodation on the specific facility providing the accommodation.

A health or safety risk can only be considered if it is "a significant risk of substantial harm. Like any qualification standard, this requirement must apply to all applicants and employees, not just to people with disabilities. If an individual appears to pose a direct threat because of a disability, the employer must first try to eliminate or reduce the risk to an acceptable level with reasonable accommodation. If an effective accommodation cannot be found, the employer may refuse to hire an applicant or discharge an employee who poses a direct threat.

An employer may not ask a job applicant about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. An employer may not make medical inquiries or conduct a medical examination until after a job offer has been made. A job offer may be conditioned on the results of a medical examination or inquiry, but only if this is required for all entering employees in similar jobs.

Medical examinations of employees must be job-related and consistent with the employer's business needs. It is not a violation of the ADA for employers to use drug tests to find out if applicants or employees are currently illegally using drugs. Tests for illegal use of drugs are not subject to the ADA's restrictions on medical examinations. Employers may hold illegal users of drugs and alcoholics to the same performance and conduct standards as other employees.

An individual with a disability who believes that s he has been discriminated against in employment can file a charge with EEOC. Remedies that may be required of an employer who is found to have discriminated against an applicant or employee with a disability include compensatory and punitive damages, back pay, front pay, restored benefits, attorney's fees, reasonable accommodation, reinstatement, and job offers.

An employer must post notices concerning the provisions of the ADA. The notices must be accessible, as needed, to persons with visual or other reading disabilities. Employers covered by Title I of the ADA also may be covered by other federal requirements that prohibit discrimination on the basis of disability. The ADA directs the agencies with enforcement authority for these legal requirements to coordinate their activities to prevent duplication and avoid conflicting standards.

Overlapping requirements exist for both public and private employers. Department of Justice, prohibits discrimination in all state and local government programs and activities, including employment, after January 26, The Department of Justice regulations implementing Title II provide that EEOC's Title I regulations will constitute the employment nondiscrimination requirements for those state and local governments covered by Title I governments with 25 or more employees after July 26, ; governments with 15 or more employees after July 26, If a government is not covered by Title I, or until it is covered, the Title II employment nondiscrimination requirements will be those in the Department of Justice coordination regulations applicable to federally assisted programs under Section of the Rehabilitation Act of , which prohibits discrimination on the basis of disability by recipients of federal financial assistance.

Section employment requirements in most respects are the same as those of Title I, because the ADA was based on the Section regulatory requirements. Note that governments receiving federal financial assistance, as well as federally funded private entities, will continue to be covered by Section In addition, some private employers are covered by Section of the Rehabilitation Act.

Section requires nondiscrimination and affirmative action by federal contractors and subcontractors to employ and advance individuals with disabilities, and is enforced by the Office of Federal Contract Compliance Programs OFCCP in the U. For further information see Resource Directory: The ADA protects qualified individuals with disabilities from employment discrimination. Under other laws that prohibit employment discrimination, it usually is a simple matter to know whether an individual is covered because of his or her race, color, sex, national origin or age.

But to know whether a person is covered by the employment provisions of the ADA can be more complicated. It is first necessary to understand the Act's very specific definitions of "disability" and "qualified individual with a disability. The ADA has a three-part definition of "disability. Accordingly, it is not the same as the definition of disability in other laws, such as state workers' compensation laws or other federal or state laws that provide benefits for people with disabilities and disabled veterans.

The first part of this definition has three major subparts that further define who is and who is not protected by the ADA. Neither the statute nor EEOC regulations list all diseases or conditions that make up "physical or mental impairments," because it would be impossible to provide a comprehensive list, given the variety of possible impairments.

A person who has epilepsy and uses medication to control seizures, or a person who walks with an artificial leg would be considered to have an impairment, even if the medicine or prosthesis reduces the impact of that impairment. An impairment under the ADA is a physiological or mental disorder; simple physical characteristics, therefore, such as eye or hair color, lefthandedness, or height or weight within a normal range, are not impairments. A physical condition that is not the result of a physiological disorder, such as pregnancy, or a predisposition to a certain disease would not be an impairment.

Similarly, personality traits such as poor judgment, quick temper or irresponsible behavior, are not themselves impairments. Environmental, cultural, or economic disadvantages, such as lack of education or a prison record also are not impairments. A person who cannot read due to dyslexia is an individual with a disability because dyslexia, which is a learning disability, is an impairment. But a person who cannot read because she dropped out of school is not an individual with a disability, because lack of education is not an impairment.

A person suffering from general "stress" because of job or personal life pressures would not be considered to have an impairment. A person who has a contagious disease has an impairment. However, although a person who has a contagious disease may be covered by the ADA, an employer would not have to hire or retain a person whose contagious disease posed a direct threat to health or safety, if no reasonable accommodation could reduce or eliminate this threat.

To be a disability covered by the ADA, an impairment must substantially limit one or more major life activities. These are activities that an average person can perform with little or no difficulty. These are examples only. Other activities such as sitting, standing, lifting, or reading are also major life activities.

An impairment is only a "disability" under the ADA if it substantially limits one or more major life activities. An individual must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an average person in the general population.

The regulations provide three factors to consider in determining whether a person's impairment substantially limits a major life activity. These factors must be considered because, generally, it is not the name of an impairment or a condition that determines whether a person is protected by the ADA, but rather the effect of an impairment or condition on the life of a particular person. Some impairments, such as blindness, deafness, HIV infection or AIDS, are by their nature substantially limiting, but many other impairments may be disabling for some individuals but not for others, depending on the impact on their activities.

Although cerebral palsy frequently significantly restricts major life activities such as speaking, walking and performing manual tasks, an individual with very mild cerebral palsy that only slightly interferes with his ability to speak and has no significant impact on other major life activities is not an individual with a disability under this part of the definition.

The determination as to whether an individual is substantially limited must always be based on the effect of an impairment on that individual's life activities. An individual who had been employed as a receptionist-clerk sustained a back injury that resulted in considerable pain. The pain permanently restricted her ability to walk, sit, stand, drive, care for her home, and engage in recreational activities. Another individual who had been employed as a general laborer had sustained a back injury, but was able to continue an active life, including recreational sports, and had obtained a new position as a security guard.

The first individual was found by a court to be an individual with a disability; the second individual was found not significantly restricted in any major life activity, and therefore not an individual with a disability. Sometimes, an individual may have two or more impairments, neither of which by itself substantially limits a major life activity, but that together have this effect.

In such a situation, the individual has a disability. A person has a mild form of arthritis in her wrists and hands and a mild form of osteoporosis. Neither impairment by itself substantially limits a major life activity. Together, however, these impairments significantly restrict her ability to lift and perform manual tasks.

She has a disability under the ADA. Employers frequently ask whether "temporary disabilities" are covered by the ADA. How long an impairment lasts is a factor to be considered, but does not by itself determine whether a person has a disability under the ADA. The basic question is whether an impairment "substantially limits" one or more major life activities.

This question is answered by looking at the extent, duration, and impact of the impairment. Temporary, non-chronic impairments that do not last for a long time and that have little or no long term impact usually are not disabilities. Broken limbs, sprains, concussions, appendicitis, common colds, or influenza generally would not be disabilities. A broken leg that heals normally within a few months, for example, would not be a disability under the ADA. It is not necessary to consider if a person is substantially limited in the major life activity of "working" if the person is substantially limited in any other major life activity.

If a person is substantially limited in seeing, hearing, or walking, there is no need to consider whether the person is also substantially limited in working. A person who cannot qualify as a commercial airline pilot because of a minor vision impairment, but who could qualify as a co-pilot or a pilot for a courier service, would not be considered substantially limited in working just because he could not perform a particular job. Similarly, a baseball pitcher who develops a bad elbow and can no longer pitch would not be substantially limited in working because he could no longer perform the specialized job of pitching in baseball.

But a person need not be totally unable to work in order to be considered substantially limited in working. The person must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes, compared to an average person with similar training, skills, and abilities. The regulations provide factors to help determine whether a person is substantially limited in working. A person would be considered significantly restricted in a "class of jobs" if a back condition prevents him from working in any heavy labor job.

A person would be considered significantly limited in the ability to perform "a broad range of jobs in various classes" if she has an allergy to a substance found in most high-rise office buildings in the geographic area in which she could reasonably seek work, and the allergy caused extreme difficulty in breathing. In this case, she would be substantially limited in the ability to perform the many different kinds of jobs that are performed in high-rise buildings. By contrast, a person who has a severe allergy to a substance in the particular office in which she works, but who is able to work in many other offices that do not contain this substance, would not be significantly restricted in working.

A computer programmer develops a vision impairment that does not substantially limit her ability to see, but because of poor contrast is unable to distinguish print on computer screens. Her impairment prevents her from working as a computer operator, programmer, instructor, or systems analyst. She is substantially limited in working, because her impairment prevents her from working in the class of jobs requiring use of a computer.

In assessing the "number" of jobs from which a person might be excluded by an impairment, the regulations make clear that it is only necessary to indicate an approximate number of jobs from which an individual would be excluded such as "few," "many," "most" , compared to an average person with similar training, skills and abilities, to show that the individual would be significantly limited in working. A person who currently illegally uses drugs is not protected by the ADA , as an "individual with a disability", when an employer acts on the basis of such use.

However, former drug addicts who have been successfully rehabilitated may be protected by the Act. See also discussion below of a person "regarded as" a drug addict. Homosexuality and bisexuality are not impairments and therefore are not disabilities covered by the ADA. The Act also states that the term "disability" does not include the following sexual and behavioral disorders:.

The discussion so far has focused on the first part of the definition of an "individual with a disability," which protects people who currently have an impairment that substantially limits a major life activity. The second and third parts of the definition protect people who may or may not actually have such an impairment, but who may be subject to discrimination because they have a record of or are regarded as having such an impairment.

This part of the definition protects people who have a history of a disability from discrimination, whether or not they currently are substantially limited in a major life activity. It protects people with a history of cancer, heart disease, or other debilitating illness, whose illnesses are either cured, controlled or in remission.

It also protects people with a history of mental illness. This part of the definition also protects people who may have been misclassified or misdiagnosed as having a disability.

Selected Enforcement Guidances and Other Policy Documents on the ADA

It protects a person who may at one time have been erroneously classified as having mental retardation or having a learning disability. These people have a record of disability. If an employer relies on any record [such as an educational, medical or employment record] containing such information to make an adverse employment decision about a person who currently is qualified to perform a job, the action is subject to challenge as a discriminatory practice.

Other examples of individuals who have a record of disability, and of potential violations of the ADA if an employer relies on such a record to make an adverse employment decision:. In the last example above, the individual was protected by the ADA because his drug addiction was an impairment that substantially limited his major life activities.

Technical Assistance Manual for Title I of the ADA

To be protected by the ADA under this part of the definition, a person must have a record of a physical or mental impairment that substantially limits one or more major life activities. This part of the definition protects people who are not substantially limited in a major life activity from discriminatory actions taken because they are perceived to have such a limitation.

Such protection is necessary, because, as the Supreme Court has stated and the Congress has reiterated, "society's myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairments. The legislative history of the ADA indicates that Congress intended this part of the definition to protect people from a range of discriminatory actions based on "myths, fears and stereotypes" about disability, which occur even when a person does not have a substantially limiting impairment.

The individual may have an impairment which is not substantially limiting, but is treated by the employer as having such an impairment. An employee has controlled high blood pressure which does not substantially limit his work activities. If an employer reassigns the individual to a less strenuous job because of unsubstantiated fear that the person would suffer a heart attack if he continues in the present job, the employer has "regarded" this person as disabled.

The individual has an impairment that is substantially limiting because of attitudes of others toward the condition. An experienced assistant manager of a convenience store who had a prominent facial scar was passed over for promotion to store manager. The owner promoted a less experienced part-time clerk, because he believed that customers and vendors would not want to look at this person.

The employer discriminated against her on the basis of disability, because he perceived and treated her as a person with a substantial limitation.


  1. Serving New Immigrant Communities in the Library.
  2. Technical Assistance Manual for Title I of the ADA!
  3. On This Page!

The individual may have no impairment at all, but is regarded by an employer as having a substantially limiting impairment. An employer discharged an employee based on a rumor that the individual had HIV disease.

This person did not have any impairment, but was treated as though she had a substantially limiting impairment. This part of the definition protects people who are "perceived" as having disabilities from employment decisions based on stereotypes, fears, or misconceptions about disability. It applies to decisions based on unsubstantiated concerns about productivity, safety, insurance, liability, attendance, costs of accommodation, accessibility, workers' compensation costs or acceptance by co-workers and customers.

Accordingly, if an employer makes an adverse employment decision based on unsubstantiated beliefs or fears that a person's perceived disability will cause problems in areas such as those listed above, and cannot show a legitimate, nondiscriminatory reason for the action, that action would be discriminatory under this part of the definition. To be protected by the ADA, a person must not only be an individual with a disability, but must be qualified.

An employer is not required to hire or retain an individual who is not qualified to perform a job. The regulations define a qualified individual with a disability as a person with a disability who:. There are two basic steps in determining whether an individual is "qualified" under the ADA:. The first step in determining whether an accountant who has cerebral palsy is qualified for a certified public accountant job is to determine if the person is a licensed CPA.

Or, if it is a company's policy that all its managers have at least three years' experience working with the company, an individual with a disability who has worked for two years for the company would not be qualified for a managerial position. This first step is sometimes referred to as determining if an individual with a disability is "otherwise qualified.

The ADA requires an employer to focus on the essential functions of a job to determine whether a person with a disability is qualified. This is an important nondiscrimination requirement. Many people with disabilities who can perform essential job functions are denied employment because they cannot do things that are only marginal to the job. A file clerk position description may state that the person holding the job answers the telephone, but if in fact the basic functions of the job are to file and retrieve written materials, and telephones actually or usually are handled by other employees, a person whose hearing impairment prevents use of a telephone and who is qualified to do the basic file clerk functions should not be considered unqualified for this position.

Sometimes it is necessary to identify the essential functions of a job in order to know whether an individual with a disability is "qualified" to do the job. The regulations provide guidance on identifying the essential functions of the job. The first consideration is whether employees in the position actually are required to perform the function. A job announcement or job description for a secretary or receptionist may state that typing is a function of the job. If, in fact, the employer has never or seldom required an employee in that position to type, this could not be considered an essential function.

If a person holding a job does perform a function, the next consideration is whether removing that function would fundamentally change the job. This may be a factor because there are only a few other employees, or because of fluctuating demands of a business operation. It may be an essential function for a file clerk to answer the telephone if there are only three employees in a very busy office and each employee has to perform many different tasks.

Similarly, personality traits such as poor judgment, quick temper or irresponsible behavior, are not themselves impairments. Environmental, cultural, or economic disadvantages, such as lack of education or a prison record also are not impairments. A person who cannot read due to dyslexia is an individual with a disability because dyslexia, which is a learning disability, is an impairment. But a person who cannot read because she dropped out of school is not II-2 an individual with a disability, because lack of education is not an impairment. A person suffering from general "stress" because of job or personal life pressures would not be considered to have an impairment.

A person who has a contagious disease has an impairment. However, although a person who has a contagious disease may be covered by the ADA, an employer would not have to hire or retain a person whose contagious disease posed a direct threat to health or safety, if no reasonable accommodation could reduce or eliminate this threat. These are activities that an average person can perform wdth little or no difficulty.

Other activities such as sitting, standing, Ufting, or reading are also major life activities. II-3 iii Substantially Limits An impairment is only a "disability" under the ADA if it substantially limits one or more major life activities. An individual must be unable to perform, or be significantly limited in the ability to perform, an activity compared to an average person in the general population.

The regulations provide three factors to consider in determining whether a person's impairment substantially limits a major life activity. These factors must be considered because, generally, it is not the name of an impairment or a condition that determines whether a person is protected by the ADA, but rather the effect of an impairment or condition on the life of a particular person.

Some impairments, such as blindness, deafness, HIV infection or AIDS, are by their nature substantially limiting, but many other impairments may be disabling for some individuals but not for others, depending on the impact on their activities. Although cerebral palsy frequently significantly restricts major life activities such as speaking, walking and performing manual tasks, an individual with very mild cerebral palsy that only slightly interferes with his ability to speak and has no significant impact on other major life activities is not an individual with a disability under this part of the definition.

The determination as to whether an individual is substantially limited must always be based on the effect of an impairment on that individual's life activities. An individual who had been employed as a receptionist-clerk sustained a back injury that resulted in considerable pain. The pain permanently restricted her ability to walk, sit, stand, drive, care for her home, and engage in recreational activities. Another individual who had been employed as a general laborer had sustained a II-4 back injury, but was able to continue an active life, including recreational sports, and had obtained a new position as a security guard.

The first individual was found by a court to be an individual with a disability; the second individual was found not significantly restricted in any major life activity, and therefore not an individuEd with a disability. Sometimes, an individual may have two or more impairments, neither of which by itself substantially limits a major fife activity, but that together have this effect.

In such a situation, the individual has a disability. A person has a mild form of arthritis in her wrists and hands and a mild form of osteoporosis. Neither impairment by itself substantially limits a major life activity.

Employment

Together, however, these impairments significantly restrict her ability to lift and perform manual tasks. She has a disability under the ADA. Temporary Impairments Employers frequently ask whether "temporary disabilities" are covered by the ADA. How long an impairment lasts is a factor to be considered, but does not by itself determine whether a person has a disability imder the ADA.

The basic question is whether an impairment "substantially limits" one or more major life activities. This question is answered by looking at the extent , duration, and impact of the impairment. Broken limbs, sprains, concussions, appendicitis, common colds, or influenza generally would not be disabilities. A broken leg that heals normally within a few months, for example, would not be a disability under the ADA. II-5 Substantially Limited in Working It is not necessary to consider if a person is substantially limited in the major life activity of "working" if the person is substantially limited in any other major life activity.

If a person is substantially limited in seeing, hearing, or walking, there is no need to consider whether the person is also substantially limited in working. A person who cannot qualify as a commercial airUne pilot because of a minor vision impairment, but who could qualify as a co-pilot or a pilot for a courier service, would not be considered substantially limited in working just because he could not perform a particular job.

Similarly, a baseball pitcher who develops a bad elbow and can no longer pitch woiild not be substantially limited in working because he could no longer perform the specialized job of pitching in baseball. But a person need not be totally unable to work in order to be considered substantially limited in working. The person must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes , compared to an average person with similar training, skills, and abilities. The regulations provide factors to help determine whether a person is substantially limited in working.

A person would be considered significantly restricted in a "class of jobs" if a back condition prevents him fi-om working in any heavy labor job. A person would be considered significantly limited in the ability to perform "a broad range of jobs in various classes" if she has an allergy to a substance found in most high-rise office buildings in the geographic area in which she could reasonably seek work, and the allergy caused extreme difficulty in breathing.

In this case, she would be substantially limited in the ability to perform the many different kinds of jobs that are performed in high-rise buildings. By contrast, a person who has a severe allergy to a substance in the particular office in which she works, but who is able to work in many other offices that do not contain this substance, would not be significantly restricted in working.

A computer programmer develops a vision impairment that does not substantially limit her ability to see, but because of poor contrast is unable to distinguish print on computer screens. Her impairment prevents her from working as a computer operator, programmer, instructor, or systems analyst. In assessing the "number" of jobs from which a person might be excluded by an impairment, the regulations make clear that it is only necessary to indicate an approximate number of jobs from which an individual would be excluded such as "few," "many," "most" , compared to an average person with similar training, skills and abiUties, to show that the individual would be significantly limited in working.

Specific Exclusions A person who currently illegally uses drugs is not protected by the ADA, as an "individual with a disability", when an employer acts on the basis of such use. However, former drug addicts who have been successfully rehabilitated may be protected by the Act. See also II-7 discussion below of a person "regarded as" a drug addict. Homosexuality and bisexuality are not impairments and therefore are not disabilities covered by the ADA. The Act also states that the term "disability" does not include the following sexual and behavioral disorders: The discussion so far has focused on the first part of the definition of an "individual with a disability," which protects people who currently have an impairment that substantially limits a major life activity.

The second and third parts of the definition protect people who may or may not actually have such an impairment, but who may be subject to discrimination because they have a record of or are regarded as having such an impairment. It protects people with a history of cancer, heart disease, or other debilitating illness, whose illnesses are either cured, controlled or in remission. It also protects people with a history of mental illness. This part of the definition also protects people who may have been misclassified or misdiagnosed as having r disability.

It protects a person who may at one time have been erroneously classified as having mental retardation or having a learning disability. These people have a record of disability. If an employer relies on any record [such as an educational, medical or employment record] containing such information to make an adverse employment decision about a person who currently is qualified to perform a job, the action is II-8 subject to challenge as a discriminatory practice.

Other examples of individuals who have a record of disability, and of potential violations of the ADA if an employer relies on such a record to make an adverse employment decision: When very yovmg she was misdiagnosed as being psychopathic and this misdiagnosis was never removed from her records. If this person is otherwise qualified for a job, and an employer does not hire her based on this record, the employer has violated the ADA.

The employer reviews records from a previous employer indicating that he was labeled as "mentally retarded. This employer has violated the ADA. He has been successfully rehabilitated and has not engaged in the illegal use of drugs since receiving treatment. This applicant has a record of an impairment that substantially limited his major life activities. If he is qualified to perform a job, it would be discriminatory to reject him based on the record of his former addiction. In the last example above, the individual was protected by the ADA because his drug addiction was an impairment that substantially limited his major life activities.

To be protected by the ADA under this part of the definition, a person must have a record of a physical or mental impairment that substantially limits one or more major life activities. Such protection is necessary, because, as the Supreme Court has stated and the Congress has reiterated, "society's myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairments.

An individual may be protected under this part of the definition in three circumstances: The individual may have an impgdrment which is not substantially limiting, but is treated by the employer as having such an impairment. An employee has controlled high blood pressure which does not substantially limit his work activities.

If an employer reassigns the individual to a less strenuous job because of unsubstantiated fear that the person would suffer a heart attack if he continues in the present job, the employer has "regarded" this person as disabled. The individual has an impairment that is substantially limiting because of attitudes of others toward the condition. An experienced assistant manager of a convenience store who had a prominent facial scar was passed over for promotion to store manager. The owner promoted a less experienced part-time clerk, because he believed that customers and vendors would not want to look at this person.

The employer discriminated against her on the basis of disability, because he perceived and treated her as a person with a substantial Umitation. The individual may have no impairment at all, but is regarded by an employer as having a substantiallv limiting impairment.

An employer discharged an employee based on a rumor that the individual had HIV disease. This person did not have any impairment, but was treated as though she had a substantially limiting impairment. This part of the definition protects people who are "perceived" as having disabilities from emplojTnent decisions based on stereotypes, fears, or misconceptions about disability. It applies to decisions based on unsubstantiated concerns about productivity, safety, insurance, liability, attendance, costs of accommodation, accessibility, workers' compensation costs or acceptance by co-workers and customers.

Accordingly, if an employer makes an adverse employment decision based on unsubstantiated beliefs or fears that a person's perceived disability will cause problems in areas such as those listed above, and cannot show a legitimate, nondiscriminatory reason for the action, that action would be discriminatory under this part of the definition. An employer is not required to hire or retain an individual who is not qualified to perform a job. The regulations define a qualified individual with a disability as a person vnth a disability who: The first step in determining whether an accountant who has cerebral palsy is qualified for a certified public accovmtant job is to determine if the person is a licensed CPA.

Or, if it is a company's policy that all its managers have at least three years' experience working with the company, an individual with a disability who has worked for two years for the company would not be qualified for a managerial position. This first step is sometimes referred to as determining if an individual with a disability is "otherwise qualified. This second step, a key aspect of nondiscrimination under the ADA, has two parts: This is an important nondiscrimination requirement. Many people with disabilities who can perform essential job functions are denied employment because they cannot do things that are only marginal to the job.

A file clerk position description may state that the person holding the job answers the telephone, but if in fact the basic functions of the job are to file and retrieve written materials, and telephones actually or usually are handled by other employees, a person whose hearing impairment prevents use of a telephone and who is qualified to do the basic file clerk functions should not be considered unqualified for this position.

The regulations provide guidance on identifying the essential functions of the job. The first consideration is whether employees in the position actually are required to perform the function. A job announcement or job description for a secretary or receptionist may state that typing is a function of the job. If, in fact, the employer has never or seldom required an employee in that position to type, this could not be considered an essential function. If a person holding a job does perform a function, the next consideration is whether removing that function would fundamentally change the job.

The regulations list several reasons why a function could be considered essential: The position exists to perform the function. The ability to proofread accurately is an essential function, because this is the reason that this position exists. The only reason this position exists is to have someone who can work on any of the three shifts in place of an absent supervisor. Therefore, the ability to work at any time of day is an essential fiinction of the job. There are a limited number of other employees available to perform the function, or among whom the function can be distributed.

This may be a factor because there are only a few other employees, or because of fluctuating demands of a business operation. It may be an essential function for a file clerk to answer the telephone if there are only three employees in a very busy office and each employee has to perform many different tasks. Or, a company with a large workforce may have periods of very heavy labor-intensive activity alternating with less active periods. The heavy work flow during peak periods may make performance of each function essential, and limit an employer's flexibility to reassign a particular function.

A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it. For example , A company wishes to expand its business with Japan. For a new sales position, in addition to sales experience, it requires a person who can communicate fluently in the JapEinese language. Fluent communication in the Japanese language is an essential function of the job. The regulation also lists several types of evidence to be considered in determining whether a function is essential.

This list is not all- inclusive, and factors not on the list may be equally important as evidence. Evidence to be considered includes: The employer's judgment An employer's judgment as to which functions are essential is important evidence. However, the legislative history of the ADA indicates that Congress did not intend that this should be the only evidence, or that it should be the prevailing evidence. Rather, the employer's judgment is a factor to be considered along with other relevant evidence.

However, the consideration of various kinds of evidence to determine which functions are essential does not mean that an employer will be second-guessed on production standards, setting the quality or quantity of work that must be performed by a person holding a job, or be required to set lower standards for the job. If an employer reqiiires its typists to be able to accurately tjrpe 75 words per minute, the employer is not required to show that such speed and accuracy are "essential" to a job or that less accuracy or speed would not be adequate. Similarly, if a hotel requires its housekeepers to thoroughly clean 16 rooms per day, it does not have to justify this standard as "essential.

A written job description prepared before advertising or interviewing applicants for a job The ADA does not require an employer to develop or maintain job descriptions.

Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

A written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence along with other relevant factors. However, the job description will not be given greater weight than other relevant evidence. A written job description may state that an employee performs a certain essential function. The job description will be evidence that the function is essential, but if individuals currently performing the job do not in fact perform this function, or perform it very infrequently, a review of the actual work performed will be more relevant evidence than the job description.

If an employer uses written job descriptions, the ADA does not require that they be limited to a description of essential functions or that "essential functions" be identified. However, if an employer wishes to use a job description as evidence of essential functions, it should in some way identify those functions that the employer believes to be important in accomplishing the purpose of the job.

If an employer uses written job descriptions, they should be reviewed to be sure that they accurately reflect the actual functions of the current job. Job descriptions written years ago frequently are inaccurate. A written job description may state that an employee reads temperature and pressiire gauges and adjusts machine controls to reflect these readings.

The job description will be evidence that these functions are essential. However, if this job description is not up-to-date, and in fact temperature and pressure are now determined automatically, the machine is controlled by a computer and the current employee does not perform the stated functions or does so very infrequently, a review of actual work performed will be more relevant evidence of what the job requires.

In identifying an essential function to determine if an individual with a disability is qualified, the employer should focus on the purpose of the function and the result to be accomplished, rather than the manner in which the function presently is performed. An individual with a disability may be qualified to perform the function if an accommodation would enable this person to perform the job in a different way, and the accommodation does not impose an undue hardship.

Although it may be essential that a function be performed, frequently it is not essential that it be performed in a particular way. In a job requiring use of a computer, the essential function is the ability to access, input, and retrieve information from the computer. It is not "essential" that a person in this job enter information manually, or visually read the information on the computer screen. Adaptive devices or computer softwaire can enable a person without arms or a person with impaired vision to perform the essential functions of the job.

Similarly, an essential function of a job on a loading dock may be to move heavy packages from the dock to a storage room, rather than to lift and carry packages from the dock to the storage See also discussion of Job Analysis and Essential Functions of a Job, below. If the employer intends to use a job description as evidence of essential functions, the job description must be prepared before advertising or interviewing for a job; a job description prepared after an alleged discriminatory action will not be considered as evidence.

The amount of time spent performing the function For example: If an employee spends most of the time or a majority of the time operating one machine, this would be evidence that operating this machine was an essential function. The consequences of not requiring a person in this job to perform a function Sometimes a fiinction that is performed infrequently may be essential because there will be serious consequences if it is not performed. The terms of a collective bargaining agreement Where a collective bargaining agreement lists duties to be performed in particular jobs, the terms of the agreement may provide evidence of essential functions.

However, like a position description, the agreement would be considered along with other evidence, such as the actual duties performed by people in these jobs. Work experience of people who have performed a job in the past and work experience of people who currently perform similar jobs The work experience of previous employees in a job and the experience of current employees in similar jobs provide pragmatic evidence of actual duties performed.

The employer should consult such employees and observe their work operations to identify essential job functions, since the tasks actually performed provide significant evidence of these functions. Other relevant factors The nature of the work operation and the employer's organizational structure may be factors in determining whether a function is essential. These orders must be filled under very tight deadlines. To meet these deadlines, it is necessary that each production worker be able to perform a variety of different tasks with different requirements.

All of these tasks are essential functions for a production worker at that facility. However, another facility that receives orders on a continuous basis finds it most efficient to organize an assembly line process, in which each production worker repeatedly performs one major task. At this facility, this single task may be the only essential function of the production worker's job.

Each worker performs a different function, but every worker is required, on a rotating basis, to perform each different function. In this situation, all the ftmctions may be considered to be essential for the job, rather than the function that any one worker performs at a particular time. Changing Essential Job Functions The ADA does not limit an employer's ability to establish or change the content, nature, or fimctions of a job. It is the employer's province to establish what a job is and what functions are required to perform it.

The ADA simply requires that an individual with a disability's qualifications for a job are evaluated in relation to its essential functions. A grocery store may have two different jobs at the checkout stand, one titled, "checkout clerk" and the other "bagger. The essential functions of the bagging job are putting items into bags, giving the bags to the customer directly or placing them in grocery carts. For legitimate business reasons, the store mainagement decides to combine the two jobs in a new job called "checker-bagger.

Each employee now must enter prices in a new, faster computer-scanner, put the items in bags, give the bags to the customer or place them in carts. The employee holding this job would have to perform all of these functions. There may be some aspects of each function, however, that are not "essential" to the job, or some possible modification in the way these functions are performed, that would enable a person employed as a "checker" whose disability prevented performance of all the bagging operations to do the new job. But if the disability only precluded lifting items of more than 20 pounds, it might be possible for this person to perform the bagging functions, except for the relatively few instances when items or loaded bags weigh more than 20 pounds.

If other employees are available who could help this individual with the few heavy items, perhaps in exchange for some incidental functions that they perform, or if this employee could keep filled bags loads under 20 pounds, then bagging loads over 20 pounds would not be an essential function of the new job. The information provided by a job analysis may or may not be helpful in properly identifying essential job functions, depending on how it is conducted.

The term "job analysis" generally is used to describe a formal process in which information about a specific job or occupation is collected and analyzed. Formal job analysis may be conducted by a number of different methods. These methods obtain different kinds of information that is used for different purposes. Some of these methods will not provide information sufficient to determine if an individual with a disability is qualified to perform "essential" job functions. One kind of formal job analysis looks at specific job tasks and classifies jobs according to how these tasks deal with data, people, and objects.

This type of job analysis is used to set wage rates for various jobs; however, it may not be adequate to identify the essential functions of a particular job, as required by the ADA. Another kind of job analysis looks at the kinds of knowledge, skills, and abilities that are necessary to perform a job. This type of job analysis is used to develop selection criteria for various jobs. The information from this type of analysis sometimes helps to measure the importance of certain skills, knowledge and abilities, but it does not take into account the fact that people with disabilities often can perform essential functions using other skills and abilities.

Some job analysis methods ask current employees and their supervisors to rate the importance of general characteristics necessary to perform a job, such as "strength," "endurance," or "intelligence," without linking these characteristics to specific job fimctions or specific tasks that are part of a function.

Such general information may not identify, for example, whether upper body or lower body "strength" is required, or whether muscular endurance or cardiovascular "endurance" is needed to perform a particular job fimction. Such information, by itself, would not be sufficient to determine whether an individual who has particular limitations can perform an essential function with or without an accommodation. As already stated, the ADA does not require a formal job analysis or any particular method of analysis to identify the essential functions of a job. A small employer may wish to conduct an informal analysis by observing and consulting with people who perform the job or have previously performed it and their supervisors.

If possible, it is advisable to observe and consult with several workers under a range of conditions, to get a better idea of all job functions and the different ways they may be performed. Production records and workloads also may be relevant factors to consider. To identify essential job functions under the ADA, a job analysis should focus on the purpose of the job and the importance of actual job fimctions in achieving this purpose. Evaluating "importance" may include consideration of the frequency with which a function is performed, the amount of time spent on the fiinction, and the consequences if the function is not performed.

The analysis may include information on the work environment such as unusual heat, cold, humidity, dust, toxic substances or stress factors. The job analysis may contain information on the manner in which a job currently is performed, but should not conclude that ability to perform the job in that manner is an essential function, unless there is no other way to perform the function without causing undue hardship. A job analysis will be most helpful for purposes of the ADA if it focuses on the results or outcome of a function, not solely on the way it customarily is performed.

The analysis may note that the person in the job "lifts 50 pound cartons to a height of 3 or 4 feet and loads them into truck-trailers 5 hours daily," but should not identify the "ability to manually lift and load 50 pound cartons" as an essential function unless this is the only method by which the function can be performed without causing an iindue hardship. A job analysis that is focused on outcomes or results also will be helpful in establishing appropriate qualification standards, developing job descriptions, conducting interviews, and selecting people in accordance with ADA requirements.

It will be particiilarly useful in helping to identify accommodations that will enable an individual with specific functional abilities and limitations to perform the job. However, if an individual with a disability who is otherwise qualified cannot perform one or more essential job functions because of his or her disability, the employer, in assessing whether the person is qucdified to do the job, must consider whether there are modifications or adjustments that would enable the person to perform these functions.

Such modifications or adjustments are called "reasonable accommodations. An employer must first consider reasonable accommodation in determining whether an individual with a disability is qualified; reasonable accommodation also must be considered when making many other employment decisions regarding people with disabilities. The following chapter discusses the employer's obligation to provide reasonable accommodation and the limits to that obligation.

The chapter also provides examples of reasonable accommodations. This duty is ongoing and may arise any time that a person's disability or job changes. Reasonable accommodation is a key nondiscrimination requirement of the ADA because of the special nature of discrimination faced by people with disabilities. Many people with disabilities can perform jobs without any need for accommodations. But many others are excluded from jobs that they are qualified to perform because of unnecessary barriers in the workplace and the work environment. The ADA recognizes that such barriers may discriminate against qualified people with disabilities just as much as overt exclusionary practices.

For this reason, the ADA requires reasonable accommodation as a means of overcoming ;innecessary barriers that prevent or restrict emplojmient opportunities for otherwise qualified individuals with disabilities. People with disabilities are restricted in employment opportunities by many different kinds of barriers. Some face physical barriers that make it difficult to get into and around a work site or to use necessary work equipment. Some are excluded or limited by the way people communicate with each other.

Others are excluded because of rigid work schedules that allow no flexibility for people with special needs caused by disability. Many are excluded only by barriers in other people's minds; these include unfounded fears, stereotypes, presumptions, and misconceptions about job performance, safety, absenteeism, costs, or acceptance by co-workers and customers. The reasonable accommodation should reduce or eliminate unnecessary barriers between the individual's abilities and the requirements for performing the essential job functions.

Reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things usually are done that enables a qualified individual with a disability to enjoy an equal emplo3Tnent opportunity. An equal employment opportunity means an opportunity to attain the same level of performance or to enjoy equal benefits and privileges of employment as are available to an average similarly-situated employee without a disabihty.

The ADA requires reasonable accommodation in three aspects of employment: As a result of Barnett, this document's guidance regarding the meaning of "reasonable accommodation," has been superseded in part. This document's guidance on potential conflicts between reassignment and seniority systems has been superseded. In accordance with the Barnett decision, the following changes are made:.

Delete "A reasonable accommodation must be an effective accommodation. Generally, it will be "unreasonable" for an employer to violate a seniority system in order to provide a reassignment.