On February 24, 1993, the Governor signed Executive Order 93-03, specifically implementing the Americans with Disabilities Act (ADA) for the state of Washington. The Act makes it unlawful to discriminate against individuals on the basis of disability in the employment, services, programs, or activities of the state. In the coming months we will be writing more specifically about the Act, including how to make a complaint, how the act is enforced and its impact on individuals with disabilities in the state of WA.
For more information about the American with Disabilities Act (ADA) in general, visit: http://www.ada.gov/ and for Washington and other states in the northwest, visit this very informative site: http://www.dbtacnorthwest.org/
Please find below another great article from Nolo highlighting important protections under the American with Disabilities Act.
by Attorney Amy DelPo
Employers may not discriminate against applicants and employees with disabilities.
People with disabilities make valuable contributions at work — if they are given the opportunity to do so. In the past decade, the federal government and many state governments have passed laws that give people with disabilities this opportunity. The main federal law is called the Americans With Disabilities Act (ADA), and it and similar state laws have changed the face of the American workforce by prohibiting discrimination against people with disabilities and by requiring employers to accommodate the disabilities of employees — and applicants — when possible.
Who Is Covered
The ADA and most state laws protect “qualified workers with disabilities.” Thus, someone must be a qualified worker and must have a legally recognized disability to be protected by the ADA. Let’s look more closely at these issues.
A qualified worker is a worker who can perform most basic and necessary job duties, with or without some form of accommodation from you.
There are three ways in which a worker can qualify for protection under the ADA:
- The worker has a physical or mental impairment that substantially limits a major life activity (such as the ability to walk, talk, see, hear, breathe, reason, work, or take care of oneself). Courts tend not to categorically characterize certain conditions as disabilities. Instead, they consider the effect of the particular condition on the particular employee.
- The worker has a record or history of impairment. In other words, you may not make employment decisions based on your employee’s past disability.
- You regard the worker – even incorrectly — as having a disability. In other words, you can’t treat workers less favorably because you believe them to be disabled, even if you are wrong.
For an impairment to be a legal disability, it must be long term. Temporary impairments, such as pregnancy or broken bones, are not covered by the ADA (but may be covered by other laws.)
Accommodating a worker means providing assistance or making changes in the job or workplace that will enable the worker to do the job. For example, an employer might lower the height of a desktop to accommodate a worker in a wheelchair; provide TDD telephone equipment for a worker whose hearing is impaired; or provide a quiet, distraction-free workspace for a worker with attention deficit disorder.
Negotiating an Accommodation
It is your employee’s responsibility to inform you of the disability and request a reasonable accommodation — you are not legally required to guess at what might help the employee do his or her job. However, once an employee informs you of his or her disability, you must engage in what the law calls a “flexible interactive process” — essentially, a brainstorming dialogue with your worker to figure out what kinds of accommodations might be effective and practical. You do not have to give your worker the precise accommodation he or she requests, but you must work together to come up with a reasonable solution.
Undue Hardship Exception
You don’t have to provide an accommodation if it would cause your business “undue hardship.” For instance, if the cost of an accommodation would eat up an entire year’s profits (building a new wing on your office building, for example), you don’t have to do it. Whether an accommodation qualifies as undue hardship depends on a number of factors, including:
- the cost of the accommodation
- the size and financial resources of your business
- the structure of your business, and
- the effect the accommodation would have on your business.
You and the employee may have different opinions about what constitutes a reasonable accommodation and what would be an undue hardship. If you’re unsure whether you must provide a disabled employee with a specific accommodation, you might want to get some legal help.
Alcohol and Drugs
Alcohol and drug use pose special problems under the ADA. Employees who use (or have used) alcohol or drugs may be disabled under the law. However, an employer can require these employees to meet the same work standards — including not drinking or using drugs on the job — as non disabled employees. Here are some guidelines to follow when dealing with these tricky issues:
- Alcoholism. Alcoholism is a disability covered by the ADA. This means that an employer cannot fire or discipline a worker simply for being an alcoholic. However, an employer can fire or discipline an alcoholic worker for failing to meet work-related performance and behavior standards imposed on all employees — even if the worker fails to meet these standards because of alcohol abuse.
- Illegal drug use. The ADA does not protect employees who currently use or are addicted to illegal drugs. These workers are not considered “disabled” within the meaning of the law and therefore don’t have the right to be free from discrimination or to receive a reasonable accommodation. However, the ADA does cover workers who are no longer using drugs and have successfully completed (or are currently participating in) a supervised drug rehabilitation program.
- Use of legal drugs. If an employee is taking prescription medication or over-the-counter drugs to treat a disability, you may have to accommodate that employee’s use of drugs and the side effects that the drugs have on the employee. However, you do not have to accommodate legal drug use if you cannot find a reasonable accommodation.