C. Americans with Disabilities Act

Until recently, the main federal law protecting handicapped individuals against discrimination was The Rehabilitation Act of l973, which applied mainly to government contractors and employers who received federal assistance. To remedy its limited applicability, Congress enacted the ADA to widen the scope of protection available to disabled workers. The main object of this law is to protect any person with a physical or mental impairment that substantially limits "one or more life activities." This covers a broad range of disabilities, including deafness, cancer, heart disease, epilepsy, paralysis, hearing or visual impairments, organic brain syndrome, mental retardation, depression, AIDS and learning disabilities. In addition, the ADA protects persons who have a history of a disability or who are perceived as having a disability; it even covers alcohol or drug use for workers who rehabilitate themselves.

TIP: By contrast, the term disability does not include physical characteristics within a normal range and not the result of a physiological disorder, such as baldness, bisexuality or compulsive gambling.

Despite the fact that employers with 15 or more workers may not discriminate against any qualified individual with a disability in regard to job application procedures, hiring or discharge of employees, employee compensation, terms and privileges (including job classifi- cations, fringe benefits, promotion and training opportunities, advancement, job training and other conditions of employment), many companies are still not following this federal law. It is reported that some employers are still asking about disabilities at the hiring interview, are requesting that applicants take medical examinations before they receive a job offer, and are still using outdated employment applications with improper language.

Although the ADA does not require an employer to give preferential consideration to persons with disabilities, a person with a disability cannot be excluded from consideration for a raise, promotion or on-the-job opportunity because of an inability to perform a marginal function. For example, an employer may not classify disabled applicants or employees in a way which limits their opportunities or status because of their disability. Different pay scales may not be adopted for workers with developmental disabilities if the job duties of such individuals are the same as for other workers. It is also impermissible to exclude or deny equal jobs or benefits to an individual because of that person's relationship or association with a disabled person. Thus, an employer should not fire an individual because that person does volunteer work with AIDS victims.

Examples Of Reasonable Accommodation. Under the ADA, the employer must make decisions without regard to an individual's disability, provided that he or she is able to perform the essential functions of a job, with the employer providing reasonable accommodation. On-the-job accommodations that must be provided to employees include:

• Restructuring or modifying work schedules;
• Offering part-time work;
• Permitting the employee to work at home;
• Reassigning an individual to a vacant position;
• Providing readers or interpreters for blind or deaf persons;
• Acquiring or altering equipment or devices;
• Making existing facilities readily accessible to the disabled;
• Adjusting or modifying examinations, training materials and policies;
• Adjusting marginal job requirements; and
• Allowing flexibility in arrival and departure times for people who require special vehicles for transportation or who are confined to wheelchairs.

TIP: Employers are only required to make such accommodations if the disability is known, if the accommodation requested is reasonable, and if the employee is truly disabled. An employer is relieved of responsibility to accommodate a disabled employee when to do so would impose an undue hardship. Factors considered in determining whether undue hardship exists include the nature and the costs of the accommodation to the employer, the overall financial resources of the employer (i.e., number of employees, overall size of the business, etc.) and other related factors. Courts will look at the type of operation, overall size, budget, profitability of the employer and the financial impact of the suggested accommodation in determining whether undue hardship exists.

The facts concerning what constitutes undue hardship vary from case to case. For example, a small company may not be required to hire two employees (a blind accounts receivable clerk and a reader) if the company has an opening for only one clerk. Essentially, however, if the employer can afford to accommodate, it must do so.

Employers are permitted to suggest voluntarily the kind of accommodations that may be made. This can be done, for example, to raise desks a couple of inches to accommodate wheelchairs by inserting blocks under the desk legs. Or, a parking garage may be required to modify a rule barring all vans with raised roofs, including those that are wheelchair accessible, if a wheelchair-user driving such a van wishes to park in the facility and overhead structures are high enough to accommodate the height of the van. However, if complete remodeling of the location is required, such as removing architectural barriers, widening doors, installing ramps, and providing braille, large print documents and closed captioned decoders, the employer will have to determine whether remodeling is affordable or whether it would impose undue hardship on the business.

TIP: The ADA imposes strict requirements and accessibility guidelines on new buildings with respect to windows, doors, stairs, entrances, drinking fountains, sinks, toilets, telephones, elevator controls, alarms and signs, access to conference rooms, exits and maneuverability in hallways.

The ADA also specifies that reasonable accommodation includes job restructuring, part-time or modified work schedules, and reassignment to vacant positions. Under ADA, an employer may not reduce the number of hours an employee with a disability works because of transportation difficulties and employees must be given consideration for a flexible schedule as long as that employee maintains the same number of working hours as are required of other workers in that position. In situations where, because of a disability, an employee is no longer able to perform the essential functions of his/her current job, a transfer to another vacant job for which the person is qualified is considered a reasonable accommodation; if such a position is available within the company an employer must make every effort to transfer the employee to that vacant position.

TIP: Undue hardship has many interpretations under the ADA. Larger, more profitable companies may have greater difficulty maintaining that the cost of an accommodation constitutes undue hardship than will smaller, less profitable businesses. Experts suggest that less than half of the persons with disabilities currently employed need job accommodations requiring expenditures by the employer and that less than 15 percent need job accommodations that cost more than $500.

With respect to promotions and training, employers cannot use standards, criteria or other administrative methods that discriminate on the basis of disability. Employers can, however, refuse to assign or reassign an individual with an infectious or communicable disease to a food-handling job. An employer may also state as a defense the fact that an employee poses a direct threat to the health or safety of other employees.

Acquired Disabilities While Working. Under the ADA, employers now have enhanced obligations to current employees who develop disabilities while on the job. Wrongful discharge of such persons could result in severe penalties, particularly for workers who contract the AIDS virus, become drug users off the premises or who develop alcohol problems affecting their attendance or performance.

AIDS and AIDS-Related Diseases. More than one million Americansone in 250are now thought to be infected with the HIV virus. Most people infected are young adults between the ages of 25 and 44, the age category that contains half the nation's workers. AIDS and AIDS-related diseases are protected "handicaps" within the meaning of the Rehabilitation Act and are considered covered disabilities under the ADA. However, to be regarded as an impairment, the employee's HIV status must be known by the company. For example, one plaintiff was unable to prove that he had been discharged solely because of a perceived disability where the company did not know he was HIV-positive.

TIP: Employment and educational records, in addition to medical records, often contain information indicating than an individual has a disability.

Although a person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk, case decisions indicate this does not extend to decisions excluding workers who are asymptomatic HIV carriers, those experiencing AIDS-related complex and those AIDS patients who are still physically capable of working. Thus, employers should not base employment decisions on the fact that an individual has AIDS or other contagious diseases or infections, unless there is no reasonable accommodation that will prevent the risk of transmission and enable the infected individual to perform the essential functions of the job.

Counsel Comment #108: All companies should develop and follow comprehensive AIDS policies so that people with AIDS or HIV infection receive the same rights and opportunities as workers with other serious illnesses. Such policies must comply with all relevant state and federal laws and regulations and be based on the scientific fact that the HIV virus cannot be transmitted through ordinary workplace contact. All policies should be communicated by supervisors and upper management but all medical information concerning employees should be screened to maximize confidentiality considerations.

HIV screening should not be required as part of pre-employment or routine workplace medical examinations. Companies must also establish education and training programs to reduce potential workplace problems, especially in places such as hospitals where there is a higher risk of HIV exposure.

TIP: The Equal Employment Opportunity Commission (EEOC) recently ruled that companies may not exclude AIDS coverage from their medical plans altogether because such an exclusion violates the ADA. Some smaller companies that established self-insured plans were excluding coverage for pre-existing conditions for a period of time (typically up to a year) after a person became employed. As a result of this ruling, companies must now proceed with caution and seek competent legal advice before implementing any self-insured plan which seeks to preclude coverage for HIV and AIDS sufferers. Additionally, any plan previously established which excludes persons with AIDS may now have to be modified.

Drug Use. Post-employment drug tests are permitted and employees who are currently illegal drug users are not protected from adverse action. However, if an individual has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully and no longer uses drugs, or is presently participating in a supervised drug rehabilitation program and no longer uses drugs, that person cannot be penalized.

Alcohol Use. Although American society and the workplace has suffered greatly from the proliferation of illegal drug use, the most widely abused drugalcoholis legal. The amount of alcohol-related lost time and non-productivity is staggering. To minimize the dangers of alcohol abuse, employers must remain vigilant and be aware of how problems are manifested. However, due to the enactment of numerous state and federal anti-discrimination laws, including the ADA, all companies must follow strict policies and procedures to ensure that their treatment of alcoholic employees, particularly those workers who are entitled to reasonable accommodation and protection from discrimination on the basis of their physical handicap of alcoholism, conforms to the law.

How can an employer determine whether the physical condition of a worker who drinks only outside of work hours constitutes an alcoholic condition protectable by law? What sanctions can be imposed on workers drinking on the job? Is a company obligated to allow a worker time off to attend AA meetings and clinics without terminating that individual? All employers must know answers to these questions and establish policies and practices affecting alcoholic workers to avoid running afoul of the law in this area.

Employers are permitted to prohibit the use of alcohol on the job and require that employees not be under the influence of alcohol when they report to work. In addition, workers who behave or perform unsatisfactorily due to alcohol use may be fired or treated in the same way as other workers. This is because workers who drink on the job or alcoholics who are incapable of performing their jobs properly or who present a direct threat to property or the safety of others are not protected under the law.

However, all companies must be especially careful before making any adverse decision affecting an alcoholic worker and analyze each case on its particular facts.

Reasonable accommodation of an alcoholic often consists of offering the employee rehabilitative assistance and allowing him/her the opportunity to take sick leave for treatment before initiating disciplinary action. Even if the employee refuses treatment, documentation which clearly demonstrates repeated unsatisfactory performance must be in place before a termination decision is effectuated. In one recent case, for example, a company was found liable for not offering leave without pay for a second treatment in a rehabilitation program! The judge commented that one chance is not enough, since it is recognized that relapse is predictable in the treatment of alcoholics.

TIP: In another case, the judge outlined a series of steps an employer must take to avoid violating the law which is worth repeating:

• First, offer counseling.
• If the employee refuses, offer a firm choice between treatment and discipline. If the employee chooses treatment, the employer cannot take any detrimental action during the period of the rehabilitation program.
• In case of relapse, do not automatically terminate, but some discipline short of discharge can be imposed.
• Before termination, determine if retention of the worker would impose an undue hardship on the employer. If removal is the only feasible option, the company still must evaluate whether the alcoholic condition caused poor performance; if so, the company should counsel and offer leave without pay first.
• Consider establishing and offering an employee assistance program. Such programs may protect employers from discrimination complaints and should be implemented whenever possible. In some states, notably New York and Michigan, state laws require that an employee's group health plans cover alcoholic rehabilitation programs.

When firing alcoholic workers covered under union collective bargaining agreements, an employer's position is strongest when the company can prove that all employees were notified of rules regarding disciplinary misconduct before accepting employment; that those rules were reasonable; that the company conducted a fair and objective investigation; that the employer first sought or encouraged the employee to receive treatment; that if the employee refused, he/she was given additional warnings before termination; and that the final penalty imposed fit the seriousness of the act(s).

Counsel Comment #109: Employers must face the alcoholism problem in a sympathetic yet professional way. Documentation of the problem and the help offered is essential in defending any charge of disability discrimination. Information pertaining to an employee's participation in a rehabilitation assistance program must be carefully protected to avoid violating the individual's privacy rights.

TIP: Employers must be knowledgeable of the applicability of state and local laws to their activities, in addition to federal law, and be sure to follow such laws. It is essential to consult experienced labor counsel before taking action because although the ADA provides a minimum level of protection for disabled individuals, many states have stronger laws favoring employees.

Damages for ADA violations are substantial. When a court has found an illegality, it can order injunctive relief and impose civil fines and other monetary assessments. Individuals may sue and recover monetary remedies in the form of back pay, accrued benefits, reasonable attorney fees and even be awarded a previously denied job. If the Department of Justice chooses to prosecute a company, the employer may be required to pay compensatory damages to any aggrieved persons, plus the cost of the reasonable accommodation, and may be fined as much as $30,000 for an initial violation and up to $100,000 for any subsequent violation.