- Course: Employment Law 101
- Module: Discrimination
- Lesson Type: Video
- Lesson Duration: 6:03
This time we're gonna talk about disability discrimination. The ADA is the body of law, federally, that deals with disability discrimination, it's the Americans with Disabilities Act, and it applies to employers that have 15 or more employees. Now there are provisions of the ADA that deal with building accessibility and that type of thing, but we're gonna focus our conversation today on the disability discrimination aspects as a employer.
It protects individuals with disabilities and the key thing for all businesses to understand is that there is an affirmative duty on business to provide a reasonable accommodation in order for the employee to be able to perform the essential functions of the job. So, reasonable accommodations and determining the essential functions are important aspects in the analysis of the ADA issues.
he EEOC, the US Equal Employment Opportunity Commission, is the federal agency that enforces this along with many, many other discrimination laws and they deal with disabilities in almost all aspects of employment. And not even just employment. Things like recruiting and hiring and things that happen before the employment, employee/employer relationship actually can fall within this purview as well.
A disability is defined as an individual who has a physical or a mental impairment, and the impairment has to substantially limit a major life activity. So it's important for you to realize that while that is what we normally think of in terms of a disability, that is broader in the ADA because it also deals with individuals who might have a record of such impairment. So a disease or an issue that they no longer have but they're still being treated as such is still going to be protected under the ADA. Additionally, if you regard a person as having an impairment, even though they don't have that impairment, then the protection exists for the employee as well.
So it's a very broad interpretation, now, temporary impairments that have a duration that is not expected to be as long as six months are not considered a disability, so generally, and let's say pregnancy, for instance, Is complicated. That's considered a temporary impairment, even though it's longer than six months. But coughs and colds, and flus and things like that generally don't fall under the law of disability because those are generally temporary conditions.
Now we said that it has to inhibit a major bodily function. And this is actually a fairly broad, you know, set of situations that include digestive system, irritable bowel syndrome is a disability under the law. People that have, you know, challenges with bladder control or reproduction or breathing or circulation or their immunity. There's lots of aspects of it and probably one of the more challenging are the neurological aspects of a disability that deal with maybe mental impairment or brain injuries or even not injuries just challenges like dyslexia so those are part of the disability definition as well.
Now, one of the questions that frequently happens is well, he has or she has a condition that would be a disability, but if he or she is on the proper medication, then it doesn't affect the job. And those are considered mitigating measures. Generally, mitigating measures are not analyzed in the idea of identifying whether a disability exists or not. The one exception to that is eyeglasses.
Other than that, any type of supplies or equipment or prosthetics or medications that an employee may need is not going to take away the disability status, because they have those mitigating measures or tools that can help them to function.
And finally, and this is a big area with regards to disabilities, is the concept of substance abuse, and to what degree is substance abuse protected as a disability. And candidly it is. Alcohol is protected under the ADA. A person who is currently using alcohol though is in a, they're not denied protection but you will find that their alcohol use is not going to protect them from discipline or even potentially discharge if it adversely affects their performance.
So while it's a disability, while it takes some prudence for the employer to make sure that they, deal with an alcoholic employ appropriately, it is not something that gives the employee immunity from discipline. And that's really key.
Other types of drugs besides alcohol generally are only disabilities if that employee is receiving recovery treatment. And they're not a current user. In other words, they have to not be using drugs, and they have to be going to treatment in order for a disability to apply under the ADA.
Mark A. Addington, Esq. advises and advocates on behalf of businesses concerning Labor & Employment Law, Business Regulatory Compliance, Restrictive Covenants (Non-Competition, Non-Solicitation, and Confidentiality), Wage & Hour, Privacy, Technology,...Mark's Full Bio
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Setting The Foundation
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