Top questions about the ADA

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990.² The law is a major milestone in the disability rights movement. The law, along with its Amendments Act of 2008, provides equal employment rights for people with disabilities. Under the law, employers are expected to provide reasonable accommodations to employees with disabilities to enable them to perform their job.

There are two basic mandates under the ADA that employers need to follow. First, the ADA prohibits discrimination, harassment, and retaliation against a qualified individual with a disability. A qualified individual must have the requisite skills, experience, or other job-related requirements to perform the essential duties of the job. Second, employers must engage in what is referred to as an “interactive accommodation process” with employees who have known disabilities. As part of the interactive process, the employer must explore options, choose the accommodation, implement the accommodation, and monitor the accommodation.

The ADA defines a person with a disability as “someone 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.”

A major life activity is the type of activity that you do every day or that’s a part of your body’s internal processes. Examples include a bodily function or movement such as walking, bending, or speaking; a sensory function such as seeing or hearing; cognitive functions like remembering or concentrating; and other bodily and mental operations.

A person does not have to currently have the condition for the ADA to apply. For example, a person who had cancer but is in remission would still be included.

The ADA prohibits employment discrimination against individuals with disabilities and requires employers to make “reasonable accommodations” for disabled workers. Reasonable accommodations are modifications to a job, a work environment, or a process so that a person with a disability can perform the essential functions of their job. Reasonable accommodations may include changes to make facilities more accessible, altering an employee’s schedule to allow for part-time or flexible work, or other workplace changes that do not create an undue hardship for the employer’s operations. 

There is no one-size-fits-all definition for what is “reasonable” under the ADA. How much leave or other accommodation is needed is determined on a case-by-case basis with the employee. This is known as the “interactive process.” Enough accommodation must be provided for the employee to recover to a state where they can perform their job in a way that is comparable to another similar situated employee without a disability. 

To accommodate an employee with a disability, an employer may:

An undue hardship is a modification or adjustment that would result in a significant difficulty or expense to the employer, based on their resources and business operations. An undue hardship can include a loss in the quality of work, productivity, sales, customer service, or burdens on other coworkers. Determining whether an accommodation presents an undue hardship is evaluated on a case-by-case basis. Employers must consider the nature and cost of the accommodation as well as their overall financial situation, including the number of employees, facilities, funding streams, and general operations.

If an employer considers all of these factors and determines that an accommodation would be an undue hardship, they are still required to consider any alternative accommodation that would not present an undue hardship.

The ADA applies to employers with 15 or more employees. The Family and Medical Leave Act (FMLA) is another work-leave law, which applies to all government employers (including local, state, and federal) and to private businesses with 50 or more employees. While the ADA provides protections for individuals with disabilities — which may include leave as a reasonable accommodation — the FMLA provides up to 12 weeks of job-protected leave a year for eligible employees to care for themselves or a family member for a qualifying reason.

Read more about the FMLA.

Extended leave may be permissible, but indefinite leave is not supported. Employees should have a realistic estimate as to when the employee would return to their job. Moreover, extended leaves must not pose an “undue hardship” on the employer.

Employers can review the amount of leave or leave extensions already taken by the employee (including using paid time off or FMLA leave), the medical facts of the situation (for example, did the employee break their leg and must stand and walk as a function of their job?), what other accommodations have been provided, and the impact of the employee’s job function on the employer.

Employee lawsuits for possible claims of discrimination and failure to accommodate under the ADA can be costly to defend in terms of attorneys’ fees and costs and liability for potentially significant damages, including compensatory damages ranging from $50,000 to $300,000 depending on employer size (including future financial losses; emotional pain; suffering; inconvenience; mental anguish; loss of enjoyment of life; and other non-financial losses), plus potentially significant amounts for punitive damages, back pay, front pay, and interest on these. Employee plaintiffs can also seek injunctive relief (for example, creating or revising policies, practices, or programs), and reinstatement of employment or promotion.

Learn more about the state of absence management today in Guardian’s report The Path Forward: Managing employee absence beyond the pandemic.