As a small business owner, you probably have some employees, and there might be times when you need to hire workers, say after one leaves for a new job or after you've had to fire an employee for disciplinary reasons. In either event, it's important that you're aware of numerous state and federal laws that bar discrimination in employment.
One such anti-discrimination law is the federal Americans with Disabilities Act (ADA), and you've probably heard of it. Generally, this law prohibits most employers from discriminating in work-related matters based upon a person's disability or handicap.
As a small business owner, however, it's vital that you understand the ADA a little more than that; you should understand something about who the law protects and the handicaps it covers, as well as when the law doesn't apply.
Who's Covered by the ADA?
Only employers with 15 or more employees are covered by the ADA. So, if you don't have that many employees, and you don't plan on expanding your work force, then you don't have to worry about the ADA. Nonetheless, many states have laws similar to the ADA and such a law in your state might apply to businesses with less than 15 employees, so be sure to check the laws in your area.
As for employees (and persons who apply for a job), the ADA applies to anyone with a physical or mental impairment that substantially limits one or more major life activities, such as sitting, walking and standing. Specifically, the ADA covers persons:
- Who are deaf, blind, or confined to a wheel chair
- Who have various diseases or disorders, like diabetes, HIV, and carpal tunnel syndrome
- Who suffer from severe depression or mental retardation
Under the ADA, several things are not disabilities, such as addiction to illegal drugs and compulsive gambling. Alcoholism can be a disability under the ADA, but you can hold employees with that condition to the same performance and conduct standards as all other employees, including rules prohibiting drinking on the job.
Also, the ADA protects persons with a record of a substantially limiting impairment, such as a cancer survivor, as well as person who is regarded as having such an impairment. For example, you can't fire an employee with a severe facial disfigurement merely because you fear "negative reactions" from customers or co-workers.
Finally, the ADA protects only qualified individuals with disabilities: persons who meet job-related requirements, like skill and education requirements, and can perform the essential functions of the job, with or without reasonable accommodation.
A reasonable accommodation is something that you change or modify so that a qualified individual with a disability can apply for a job, perform a job, or enjoy benefits equal to those you offer to your other employees. For example, providing regular breaks for an employee with diabetes so that he or she can check and maintain blood-sugar levels is a reasonable accomadation.
Generally, you don't have to provide a reasonable accommodation unless an employee asks for one: the employee could ask you in writing, orally, or a request could be made through a family member or doctor. Once an accommodation is requested, you should discuss with the employee what kind of accommodation can be made.
You don't have to provide an accommodation if it would cause you an undue hardship, that is, providing the accommodation would result in significant difficulty or expense. Also, you don's have to do things like:
- Remove or change essential job functions to accommodate a disability. So, for example, if an employee's job duties include typing, and he or she develops carpel tunnel syndrome, you don't have to relieve her of all typing duties to accommodate that disability.
- Lower production standards or quotas. For instance, if your employees are required to make 100 widgets per day, you don't have to lower the quota to accommodate an employee's disability.
Some examples of reasonable accommodations include:
- Special equipment, such as providing ergonomic chairs for employees with back-related disabilities.
- Changing the layout of the work premises. For example, moving the employee break lounge to an area that can be accessed by an employee in a wheel chair.
- Modifying an employee's work schedule. For example, letting an employee start work one-half hour later so that he or she can take cancer treatments on schedule.
- Reassigning an employee to a new position that doesn't aggravate his disability. But, the employee must be qualified for the new position, and you don't have to create a new position for him or displace another worker to make room for the disabled employee.
Employment Actions Covered by the ADA
Just about every employment-related decision is subject to the ADA, including:
- Whether to hire an applicant or to fire an employee
- Promotions and demotions
- Salary increases or reductions
If you make a decision that is adverse to an employee (or applicant) and you base your decision, in whole or in part, on his or her disability, you've likely violated the ADA. There is an exception, however.
You can fire an employee (or refuse to hire an applicant) with a disability if he or she poses a significant risk of substantial harm to himself or others. But, you can't just assume that the threat exists. Rather, you must establish through objective, medically supportable methods that there is a significant risk of substantial harm. And, if there's a reasonable accommodation (that's not an undue burden) that will lower the risk below "significant," then you can't fire the employee.
For example, while a deaf auto mechanic might pose a significant risk of harm to himself simply because he can't hear cars moving in and out of the garage, a reasonable accommodation would be to let him work in an area that's away from the traffic and where he can see all parts of the garage. So, you probably can't fire/refuse to hire him for safety reasons.
Questions for Your Attorney
- Can I ask potential employees about their handicaps or disabilities?
- Can I test my employees randomly for drug and alcohol use?
- If I buy an existing business and I decide to keep all 20 employees, do I need to continue any accommodations that the seller-owner made for any disabled employees? Can I change the accommodation, and if so, do I have to get the disabled employee's consent or agreement?
- Once an employee asks me for an accommodation, can I ask for some type of proof that the accommodation is needed, like a doctor's note?