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Americans with Disabilities Act (ADA) Pitfalls: What Do Small Business Owners Need to Know?

Americans with Disabilities Act (ADA) Pitfalls: What Do Small Business Owners Need to Know?

The Americans with Disabilities Act (ADA) is a federal law that protects employees and job candidates against disability-based discrimination. This includes discrimination with regard to employment status and compensation, and harassment in the workplace.  There is also a provision concerning the granting of “reasonable accommodations” to allow employees to perform their job-related duties despite having a disability.

The ADA’s employment-related provisions largely fall within the jurisdiction of the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC enforces employers’ obligations directly and provides a forum for employees to seek compensation and other remedies for ADA violations. For small business owners, understanding when the ADA applies, when it is necessary to prove a reasonable accommodation, and what to do when an employee raises concerns about a possible ADA violation is critical to mitigating the risk of liability in an EEOC proceeding or federal litigation.

When is a Small Business Subject to ADA Compliance?

The ADA applies to private employers that have 15 or more employees. The definition of “employees” under the Act includes full-time and part-time employees, but does not include independent contractors. Since ADA compliance questions generally arise in the context of employee allegations, the timeframe for meeting the threshold employee number is measured from the date of a purported violation. As the EEOC explains, “An employer is covered..if it has 15 or more employees for each working day in each of 20 or more calendar weeks in the same calendar year as, or in the calendar year prior to when, the alleged discrimination occurred.”

When is an Employee Considered Disabled for Purposes of ADA Compliance?

Not all medical conditions qualify as disabilities under the ADA. For example, colds, broken bones, and common vision impairments (i.e. nearsightedness and farsightedness) are not considered disabling conditions. Conditions that do qualify as disabilities under the ADA include:

  • AIDS and its symptoms
  • Asthma
  • Blindness and other significant visual impairments
  • Cancer
  • Cerebral palsy
  • Depression
  • Anxiety

In more general terms, an employee or job candidate may qualify for protection under the ADA if he or she:

  • Has a physical or mental condition that substantially limits his or her ability to perform a “major life activity” such as hearing, seeing, walking, communicating or learning;
  • Has a history of living with a disability, such as cancer in remission; or
  • Has (or is believed to have) a physical or mental impairment that is expected to last six months or longer.

When is an Employer Required to Provide a “Reasonable Accommodation” for a Disabled Employee?

One of the most common allegations against small businesses under the ADA is the failure to provide a reasonable accommodation for a disabled employee. The EEOC defines a reasonable accommodation as “[A]ny change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.”

Employers must provide reasonable accommodations whenever they are necessary to avoid disparate treatment of disabled workers, unless accommodating an employee’s disability would require “significant difficulty or expense.” Depending upon an individual employee’s needs, examples of reasonable accommodations include providing:

  • A modified work schedule;
  • Additional unpaid leave for necessary medical treatment;
  • Special shoes; or,
  • Wheelchair accessibility.

Whether providing a reasonable accommodation would result in significant difficulty or expense is a subjective determination that takes into account the employer’s size, financial resources, and business needs. If multiple options are available, the employer is permitted to choose the least expensive alternative, even if the employee would prefer something different. Additionally, if it is not possible to provide a reasonable accommodation, the employer is not required to create a job that the employee can perform in order to comply with the ADA.

What Pitfalls Do Small Businesses Need to Avoid with Regard to ADA Compliance?

To comply with the Americans with Disabilities Act, small businesses must avoid a number of pitfalls. These common mistakes can increase employers’ liability exposure under the ADA, and may create exposure under circumstances in which legal risk could have been easily avoided.

  • Failing to document ADA policies and procedures – Small businesses that are subject to the ADA should develop employee handbooks that describe the ADA’s protection, require disclosure of disabling conditions to human resources (HR) personnel or supervisors, and outline the process for seeking reasonable accommodations. Businesses should employ policies and procedures for ensuring ADA compliance at the management level as well.
  • Failing to document reasonable accommodations – The decision to provide a reasonable accommodation for a disabled employee should be documented, in addition to the accommodation itself. Businesses should also document the employee’s acknowledgement and acceptance of the accommodation.
  • Making medical determinations of disability – Employers must avoid making medical determinations. The question of whether an employee is disabled should be answered by the employee’s doctor, not his or her employer.
  • Imposing attendance-related discipline – Employees’ attorneys will often try to use attendance-related discipline as direct evidence of disability-based discrimination. All decisions regarding employee discipline must be carefully considered and clearly based on factors other than the employee’s physical or mental condition.
  • Applying disciplinary policies nonuniformly – With regard to all forms of discipline, non-uniform application is one of the surest ways to generate complaints among allegedly disparately-treated employees.
  • Documenting concerns regarding disabilities and reasonable accommodations – While documenting compliance efforts is a good idea, documenting concerns about issues with potential ADA-related implications is not. An email chain discussing concerns regarding an employee’s inability to perform the job due to a disability may not be viewed favorably in a subsequent EEOC discrimination proceeding.

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by Mark T. Sottile // Mark. T. Sottile is a skilled trial attorney at Burns White LLC who focuses on employment and commercial litigation. He has litigated hundreds of claims under a number of federal statutes, namely Title VII, 1981, the FMLA, ADEA, and ADA. He is located in the firm’s Philadelphia office.

Opinions expressed by contributors are their own.