An article written by Employment Law Partner James F. Devine, Esq. discussing the Americans with Disabilities Act (ADA) since its adoption in 1990 and how employers who wish to avoid discrimination claims by staying compliant to the Act.

A podcast discussing the Americans with Disabilities Act (ADA) with Employment Law Partners Jim Devine and Ryan Murphy.

PODCAST - ADA Policy with Jim Devine and Ryan Murphy

Introduction

The Americans with Disabilities Act (ADA) was adopted in 1990 with the goal of establishing a “clear and comprehensive” prohibition of discrimination based on disability.  Employers who wish to avoid discrimination claims must make it a priority to stay compliant with the ADA.

The Law

Title I of the ADA prohibits private employers, state and local governments, employment agencies, and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.  The ADA only applies to employers with fifteen (15) or more employees.  However, small employers may still have exposure to state claims.  By example, the Pennsylvania Human Relations Act (PHRA) requires employers with four (4) or more employees to reasonably accommodate qualified individuals with disabilities.

An individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities and either has a record of such impairment or is regarded as having such impairment.  A qualified individual per the ADA is a person with a disability who, with or without reasonable accommodation, can perform the essential functions of the job in question.  Once the qualified individual with a disability requests an accommodation, the interactive process between the employee and the employer begins.  During the interactive process, the individual and the employer work together to determine the precise limitations created by the disability and how to best accommodate the individual.  Note, however, that an employer must only provide a reasonable accommodation, which is defined as “a modification or adjustment to the work environment or the circumstances under which the position held or desired is customarily performed, that enables an individual with a disability who is qualified to perform the essential functions of that position.”  An employer who fails to provide a reasonable accommodation to a qualified individual with a disability violates the ADA unless such accommodation would create an undue hardship - defined as a significant difficulty or expense.

Policy and Workplace Culture

I. Description of the Policy

An effective ADA Policy has several key components.  Below is a list of crucial aspects of an effective policy:

• A description of the applicable law;
• A list of the ways in which the company will not discriminate against disabled individuals;
• A statement outlining safety standards applicable to all employees;
• Definitions of relevant terms used in relation to the ADA policy.

II. Workplace Culture

Employers must adopt a zero-tolerance policy toward any type of discrimination including disability.  This means that any type of discrimination during any part of the employment process toward qualified individuals with disabilities is not tolerated.  Employers must understand their responsibilities, from application to interview, and from discipline to termination, to treat all employees consistently and objectively under the prevailing policies.  To help prevent claims, employers should apply consistent discipline policies and fully document reasoning for discipline.  Moreover, employers should keep detailed, objective records of all employment decisions.  Such records will act as an affirmative defense for the employer should a claim arise.

Moreover, discrimination claims, particularly those pertaining to or deriving from remote work and flexible schedules throughout the COVID-19 pandemic are on the rise.  Employees feel “forced” back into the workplace and do not understand why they cannot be “accommodated” to work from home.  Only a defined policy followed by appropriate training can provide the appropriate explanation to concerned employees and affirmative defense for employers.

Claims, Damages, and Impact

As with any type of discrimination, a victim of unlawful discrimination based on disability may bring claims at the state and federal level.  For example, in Pennsylvania, a victim has 180 days from the last date of unlawful harassment to file a claim with the Pennsylvania Human Relations Commission (PHRC).  At the federal level, a victim has 300 days from the last date of unlawful harassment to file a claim with the Equal Employment Opportunity Commission (EEOC).

When a victim brings a claim for discrimination, an employer is required to retain an attorney to answer the claim.  These claims quickly become costly for employers.  Should an employee be awarded damages, an employer may be liable for back pay, front pay, emotional distress damages, punitive damages, attorneys’ costs and fees, and reinstatement.

An effective policy, particularly one combined with training and internal protocol, can provide affirmative defense to claims and serve to mitigate damages.

Analysis and Conclusion

Discrimination claims against qualified individuals with disabilities can manifest in all stages of the employment relationship.  Employers must be proactive in their address.  They must develop and retain an effective policy for reporting instances of discrimination, and this policy should be made available to all employees.  Moreover, discrimination based on disability should be discussed during annual employee harassment and discrimination training.  It is also worth noting that there may be an alleged nexus between medical marijuana use and a protected disability under the ADA.  Employers must retain an effective medical marijuana policy to avoid claims brought under the ADA if an employer disciplines an employee who uses medical marijuana to treat a disability.  Since the ADA is intertwined with other Handbook polices such as medical marijuana and harassment and discrimination, employers should maintain effective policies and engage in best practices to prevent disability discrimination claims and provide affirmative defense to mitigate damages should a claim arise.

The Americans with Disabilities Act applies to all employers with 15 or more employees.  Most states have similar statutes.  In Pennsylvania the Pennsylvania Human Relations Act applies to employers with 4 or more employees and provides similar protections to employees with disabilities.  The Georgia Fair Employment Practices Act prohibits discrimination in public employment based on race, color, religion, national origin, sex, disability, or age.  The New Jersey equivalent is known as the New Jersey Law Against Discrimination.  It is one of the broadest and most expansive laws protecting employees with disabilities in the country.  Employers accused of violations face joint charges under both state and federal law.  Accordingly, all employers must review their Handbooks to include an appropriate Americans with Disabilities Act/Anti-Discrimination Policy.

If you have any questions or concerns, please contact one of the attorneys in our Employment Law Group at EmploymentLaw@c-wlaw.com or 1-888-488-2638.

DISCLAIMER

The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C. or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.