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Enacted in 1990 by US Congress, the Americans with Disabilities Act (ADA) has intent similar to other employment laws - it prohibits discrimination within the workplace. Specifically, the ADA makes it unlawful for any employer with 15 or more employees to discriminate against a qualified individual with a disability. The employment provisions of the ADA are administered and enforced by the US Equal Employment Opportunity Commission (EEOC).

The ADA covers all employment practices such as hiring, job application procedures, firing, advancement, compensation, training, etc. It also applies to recruiting practices, advertising, tenure, layoff, leave and all other employment-related activities. Many do not realize that this employment law covers not only those qualified individuals with a disability that may apply for a position at your company, but also employees that may become disabled while working for you.

As with other federal nondiscrimination programs, a poster outlining ADA provisions (can be obtained by visiting www1.eeoc.gov/employers/poster.cfm) needs to be posted alongside the information on sexual harassment policies, fair labor standards and the poster on occupational safety and health issues. The following offers general guidance on a few of the questions regarding this act.

What is a Qualified Individual with a Disability?
The ADA prohibits discrimination against "a qualified individual with a disability." This is defined as a person who has a physical or mental impairment that substantially limits one or more major life activities; has a record of such impairment; or is regarded as having such impairment.

The statute is clear as to what is considered substantially limiting. For example, if the person's disability limits activities such as breathing, seeing, hearing, speaking, walking, performing manual tasks, learning, caring for oneself or working, then it is considered substantial. Individuals with epilepsy, paralysis and/or substantial hearing loss would be covered, but someone with a non-chronic condition of a short duration such as a sprain, infection or broken limb would generally not be covered.

Also, the definition prohibits discrimination against someone who might have a history of cancer, be currently in remission or have a history of mental illness. Finally, people who might be regarded as having a disability, such as a severely disfigured individual, cannot be denied employment simply because of feared "negative reactions" from other employees.

What is meant by qualified? A qualified individual with a disability is one who meets all legitimate skill, experience, education or other requirements and can perform the essential job functions with or without reasonable accommodations. There are no quotas associated with the enactment and implementation of the ADA, and as an employer, you do not have to give preference to a qualified applicant with a disability over other applicants. One example is of two people applying for a word processing position. If one person with a disability can type 50 words a minute and another without a disability can type 75 words a minute, you are free to hire the application with the higher typing speed if typing speed is needed for successful performance of the job.

What is a Reasonable Accommodation?
A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process; to perform the essential functions of a job; or to enjoy the benefits of employment equal to those enjoyed by employees without disabilities. Reasonable accommodations may include:

• Job restructuring
• Part-time or modified work schedules
• Reassignment to a vacant position
• Making the workplace readily accessible to and usable by people with disabilities

Employers are only required to accommodate a known disability of a qualified applicant or employee. The requirement will generally be triggered by a request from an individual with a disability who can frequently suggest an appropriate accommodation. It is important to note that accommodations must be made on an individual basis. If the individual does not request an accommodation, the employer is not obligated to provide one.

What is an Essential Job Function?
Essential job functions are the basic job duties that an employee must be able to perform with or without reasonable accommodations. Factors to determine if a job function is essential include:

• If the job function is the purpose of the position
• The number of other employees available
• The degree of expertise or skill required

While not mandatory, it is recommended that job announcements include information on essential job functions. Information on job openings should be accessible to people with different disabilities. It is not mandatory to provide information in various formats in advance, but it should be available upon request. If you are using an employment agency, please note that both the employer and the agency could be held liable for any violations of the ADA.

Can I Ask Applicants if They are Disabled?
The short answer is no. The ADA specifically prohibits any pre-employment inquiry about a disability. Before making a job offer, the employer can ask questions about an applicant's ability to perform specific job functions and may make a job offer that is conditional on satisfactory results of a post-offer medical examination or inquiry.

Pre-employment physicals are not allowed at the pre-offer stage. You also cannot make inquiries about disabilities in background or reference checks, on the job application form or during the interview itself.

Any questions regarding health issues such as hospitalization questions, mental illness issues or references to physical defects should be deleted. It is recommended that questions on the application form focus on the applicant's ability to perform the previously identified essential job functions.

After the conditional job offer has been made, you can then make unrestricted medical inquiries, but you may not refuse to hire an individual with a disability based on the results of these inquiries. All information obtained must be kept confidential.

The information presented here offers a snapshot of the ADA. If you have questions, please contact SGIA's Government & Business Information Department at govtaffairs@sgia.org.

This article appeared in the SGIA Journal, May / June 2015 Issue and is reprinted with permission. Copyright 2015 Specialty Graphic Imaging Association (www.sgia.org). All Rights Reserved