Basics of Americans with Disabilities Act-Antonia Domingo
The information provided is general in nature and does not constitute legal advice or opinion, nor does it address specific individual cases or pending grievances
Agenda:
What is the ADA?
How does the ADA work?
Collective bargaining and the ADA
Purpose of ada
To establish a clear and comprehensive prohibition of discrimination on the basis of disability
Signed into law in 1990
Talking about Title 1 today-deals with employment
Employment (Title 1)
The ADA prohibits employers with 15 or more employees from discriminating against qualified job applicants and workers who are disabled, may become disabled, or are regarded as having a disability.
Employer cannot refuse to hire, demote, fire, for employee having a disability or if they think they have a disability.
Title 1 also applies to labor unions
A qualified individual
- An individual with a disability
- Who satisifies the requisite skill, experience, education, and other job-related requirements of the position held or desired;
- Who can, with or without reasonable accommodation
Perform the essential functions of the job
- An individual with a disability
A person who has a physical or mental impairment that substantially limits one or more major life activities.
Major life activities:
Bending
Breathing
Caring for self
Concentrating
Eating
Hearing
Interacting with others
Learning
Performing manual tasks
Reaching
Reading
Seeing
Sitting
Sleeping
Speaking
Standing
Limitations:
Ada does not cover individuals who wear glasses or contacts
Short term conditions are usually not covered
But if an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active
And any short term condition which is ”sufficiently severe” may qualify as a disability. Ie, pneumonia
-Pregnancy is not a disability
But conditions associated with pregnancy might be
Long covid can be a disability
Substance abuse disorders-
Alcoholism is a covered disability, including if employee is actively drinking
Drug addiction-more complicated
If an addict has an illegal substance addiction, and they are currently using-not a disability. If they are in recovery, it is a disability
If an employee is an alcohol or drug addict, what does accommodation look like? Can enforce substance abuse policies. They do not have to accommodate the consequences of the addiction. May need to provide employees a modified schedule to attend AA/NA meetings, or to receive treatment (rehab)
FMLA/ADA-if the accommodation would be some kind of leave in excess of FMLA, employer may need to extend leave to accommodate treatment
Regarded as having a disability: (mostly comes up in hiring)
-if the company acts like a person is disabled, employee is protected by the ADA
-stereotypical thinking
-employee has a recorded impairment
- An individual with a disability that satisfies the job requirements
Experience, communication, education, skills
- An individual with a disability who satisfies the job requirements who can, with or without reasonable accommodation…
-higher desk for a wheelchair user so chair fits under desk
Reasonable accommodations
Any change or adjustment to a job or work environment that permits a qualified applicant or employee to perform essential functions of a job, or to enjoy benefits and privileges of employment equal to those employed by those without disabilities.
Examples:
-providing or modifying equipment or devices
-job restructuring (changing minor functions)
-part-time/modified/remote work schedules/leave
-reassignment to a vacant position (but bumping is not required)
-adjusting or modifying examinations, training materials or policies
-providing readers and interpreters
-making the workplace readily accessible and usable by people with disabilities
Under the ADA, use of marijuana is not protected because it is federally illegal
In different states that have legal use, those could be different
Obesity is not
Height is not, unless something like dwarfism
An employee must ask for a reasonable accommodation unless their disability is known or obvious
Flexible, interactive process
-employer and individual “should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation”
-employer can ask for documentation to confirm employee has disability that needs accommodating. But only if disability is not obvious.
-employer can chose among multiple reasonable accommodations.
Limitations
-an employer does not have to offer an accommodation if it would impose an undue hardship on the operation of the employer’s business
-undue hardship=an action requiring significant difficulty or expense
- An individual with a disability who satisfies the job requirement who can, with or without reasonable accommodation, perform the essential functions of the job.
Essential job functions
-functions/tasks that are essential to job performance
-does the position exist to perform that function?
-can these tasks be distributed among other employees
-what expertise/sill is used to perform the task.
-terms of the CBA may be relevant.
Collective bargaining and the ADA
-companies and unions cannot bargain agreements that would violate4 the ADA
-bargaining obligations under the NLRA may apply to the reasonable accommodations process. See Industria Lechera de Puerto Rico, Incl; 344 NLRB 1075 (2005): employer had obligation to bargain before transferring disabled employee to desirable shift
-US Airways, Inc v Barnett, 535 US 391(2002): an accommodation that would require an employer to violate an established seniority system is usually not reasonable
-grievance procedure may apply to reasonable accommodation issues
ADA does not differentiate between probationary employees or not