*The U.S. Equal Employment Opportunity Commission*

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# The ADA: Questions and Answers

## Employment

- Q. What employers are covered by the ADA, and when is the coverageeffective?
- A. The employment provisions of title I of the  ADA  apply toprivate employers, State and local governments, employmentagencies, and labor unions. Employers with 25 or more employeeswere covered starting July 26, 1992, when title I went into effect.Employers with 15 or more employees were covered two years later,beginning July 26, 1994.  In addition, the employment practices of State and localgovernments of any size are covered by title II of the ADA, whichgoes into effect on January 26, 1992. The standards to be usedunder title II for determining whether employment discriminationhas occurred depend on whether the public entity at issue is alsocovered by title I. Beginning July 26, 1992, if the public entityis covered by title I, then title I standards will apply. If not,the standards of section 504 of the Rehabilitation Act will apply.From January 26, 1992, when title II went into effect, until July26, 1992, when title I went into effect, public entities weresubject to the section 504 standards. 
- Q. What practices and activities are covered by theemployment nondiscrimination requirements?
- A. The  ADA  prohibits discrimination in all employmentpractices, including job application procedures, hiring, firing,advancement, compensation, training, and other terms, conditions,and privileges of employment. It applies to recruitment,advertising, tenure, layoff, leave, fringe benefits, and all otheremployment-related activities.
- Q. Who is protected against employmentdiscrimination?
- A. Employment discrimination is prohibited against "qualifiedindividuals with disabilities." Persons discriminated againstbecause they have a known association or relationship with adisabled individual also are protected. The  ADA  defines an"individual with a disability" as a person who has a physical ormental impairment that substantially limits one or more major lifeactivities, has a record of such an impairment, or is regarded ashaving such an impairment.  The first part of the definition makes clear that the ADAapplies to persons who have substantial, as distinct from minor,impairments, and that these must be impairments that limit majorlife activities such as seeing, hearing, speaking, walking,breathing, performing manual tasks, learning, caring for oneself,and working. An individual with epilepsy, paralysis, a substantialhearing or visual impairment, mental retardation, or a learningdisability would be covered, but an individual with a minor,nonchronic condition of short duration, such as a sprain,infection, or broken limb, generally would not be covered.  The second part of the definition would include, for example, aperson with a history of cancer that is currently in remission or aperson with a history of mental illness.  The third part of the definition protects individuals who areregarded and treated as though they have a substantially limitingdisability, even though they may not have such an impairment. Forexample, this provision would protect a severely disfiguredqualified individual from being denied employment because anemployer feared the "negative reactions" of others. 
- Q. Who is a "qualified individual with adisability?"
- A. A qualified individual with a disability is a person whomeets legitimate skill, experience, education, or otherrequirements of an employment position that he or she holds orseeks, and who can perform the "essential functions" of theposition with or without reasonable accommodation. Requiring theability to perform "essential" functions assures that an individualwill not be considered unqualified simply because of inability toperform marginal or incidental job functions. If the individual isqualified to perform essential job functions except for limitationscaused by a disability, the employer must consider whether theindividual could perform these functions with a reasonableaccommodation. If a written job description has been prepared inadvance of advertising or interviewing applicants for a job, thiswill be considered as evidence, although not necessarily conclusiveevidence, of the essential functions of the job.
- Q. Does an employer have to give preference to aqualified applicant with a disability over otherapplicants?
- A. No. An employer is free to select the most qualifiedapplicant available and to make decisions based on reasonsunrelated to the existence or consequence of a disability. Forexample, if two persons apply for a job opening as a typist, one aperson with a disability who accurately types 50 words per minute,the other a person without a disability who accurately types 75words per minute, the employer may hire the applicant with thehigher typing speed, if typing speed is needed for successfulperformance of the job.
- Q. What is "reasonable accommodation?"
- A. Reasonable accommodation is a modification or an adjustmentto a job or the work environment that will enable a qualifiedapplicant or employee with a disability to participate in theapplication process or to perform essential job functions.Reasonable accommodation also includes adjustments to assure that aqualified individual with a disability has rights and privileges inemployment equal to those of nondisabled employees.
- Q. What kinds of actions are required to reasonablyaccommodate applicants and employees?
- A. Examples of reasonable accommodation include making existingfacilities used by employees readily accessible to and usable by anindividual with a disability; restructuring a job; modifying workschedules; acquiring or modifying equipment; providing qualifiedreaders or interpreters; or appropriately modifying examinations,training, or other programs. Reasonable accommodation also mayinclude reassigning a current employee to a vacant position forwhich the individual is qualified, if the person becomes disabledand is unable to do the original job. However, there is noobligation to find a position for an applicant who is not qualifiedfor the position sought. Employers are not required to lowerquality or quantity standards in order to make an accommodation,nor are they obligated to provide personal use items such asglasses or hearing aids.  The decision as to the appropriate accommodation must be basedon the particular facts of each case. In selecting the particulartype of reasonable accommodation to provide, the principal test isthat of effectiveness, i.e., whether the accommodation will enablethe person with a disability to do the job in question. 
- Q. Must employers be familiar with the many diversetypes of disabilities to know whether or how to make a reasonableaccommodation?
- A. No. An employer is required to accommodate only a "known"disability of a qualified applicant or employee. The requirementgenerally will be triggered by a request from an individual with adisability, who frequently can suggest an appropriateaccommodation. Accommodations must be made on an individual basis,because the nature and extent of a disabling condition and therequirements of the job will vary in each case. If the individualdoes not request an accommodation, the employer is not obligated toprovide one. If a disabled person requests, but cannot suggest, anappropriate accommodation, the employer and the individual shouldwork together to identify one. There are also many public andprivate resources that can provide assistance without cost.
- Q. What are the limitations on the obligation to make areasonable accommodation?
- A. The disabled individual requiring the accommodation must beotherwise qualified, and the disability must be known to theemployer. In addition, an employer is not required to make anaccommodation if it would impose an "undue hardship" on theoperation of the employer's business. "Undue hardship" is definedas "an action requiring significant difficulty or expense" whenconsidered in light of a number of factors. These factors includethe nature and cost of the accommodation in relation to the size,resources, nature, and structure of the employer's operation. Wherethe facility making the accommodation is part of a larger entity,the structure and overall resources of the larger organizationwould be considered, as well as the financial and administrativerelationship of the facility to the larger organization. Ingeneral, a larger employer would be expected to make accommodationsrequiring greater effort or expense than would be required of asmaller employer.
- Q. Must an employer modify existing facilities to makethem accessible?
- A. An employer may be required to modify facilities to enablean individual to perform essential job functions and to have equalopportunity to participate in other employment-related activities.For example, if an employee lounge is located in a placeinaccessible to a person using a wheelchair, the lounge might bemodified or relocated, or comparable facilities might be providedin a location that would enable the individual to take a break withco-workers.
- Q. May an employer inquire as to whether a prospectiveemployee is disabled?
- A. An employer may not make a pre-employment inquiry on anapplication form or in an interview as to whether, or to whatextent, an individual is disabled. The employer may ask a jobapplicant whether he or she can perform particular job functions.If the applicant has a disability known to the employer, theemployer may ask how he or she can perform job functions that theemployer considers difficult or impossible to perform because ofthe disability, and whether an accommodation would be needed. A joboffer may be conditioned on the results of a medical examination,provided that the examination is required for all enteringemployees in the same job category regardless of disability, andthat information obtained is handled according to confidentialityrequirements specified in the Act. After an employee enters onduty, all medical examinations and inquiries must be job relatedand necessary for the conduct of the employer's business. Theseprovisions of the law are intended to prevent the employer frombasing hiring and employment decisions on unfounded assumptionsabout the effects of a disability.
- Q. Does the ADA take safety issues intoaccount?
- A. Yes. The  ADA  expressly permits employers to establishqualification standards that will exclude individuals who pose adirect threat -- i.e., a significant risk of substantial harm -- tothe health or safety of the individual or of others, if that riskcannot be lowered to an acceptable level by reasonableaccommodation. However, an employer may not simply assume that athreat exists; the employer must establish through objective,medically supportable methods that there is genuine risk thatsubstantial harm could occur in the workplace. By requiringemployers to make individualized judgments based on reliablemedical or other objective evidence rather than on generalizations,ignorance, fear, patronizing attitudes, or stereotypes, the  ADA recognizes the need to balance the interests of people withdisabilities against the legitimate interests of employers inmaintaining a safe workplace.
- Q. Can an employer refuse to hire an applicant or firea current employee who is illegally using drugs?
- A. Yes. Individuals who currently engage in the illegal use ofdrugs are specifically excluded from the definition of a "qualifiedindividual with a disability" protected by the  ADA  when an actionis taken on the basis of their drug use.
- Q. Is testing for illegal drugs permissible under theADA?
- A. Yes. A test for illegal drugs is not considered a medicalexamination under the  ADA ; therefore, employers may conduct suchtesting of applicants or employees and make employment decisionsbased on the results. The  ADA  does not encourage, prohibit, orauthorize drug tests.
- Q. Are people with AIDS covered by theADA?
- A. Yes. The legislative history indicates that Congressintended the  ADA  to protect persons with  AIDS  and  HIV  disease fromdiscrimination.
- Q. How does the ADA recognize public healthconcerns?
- A. No provision in the  ADA  is intended to supplant the role ofpublic health authorities in protecting the community fromlegitimate health threats. The  ADA  recognizes the need to strike abalance between the right of a disabled person to be free fromdiscrimination based on unfounded fear and the right of the publicto be protected.
- Q. What is discrimination based on "relationship orassociation?"
- A. The  ADA  prohibits discrimination based on relationship orassociation in order to protect individuals from actions based onunfounded assumptions that their relationship to a person with adisability would affect their job performance, and from actionscaused by bias or misinformation concerning certain disabilities.For example, this provision would protect a person with a disabledspouse from being denied employment because of an employer'sunfounded assumption that the applicant would use excessive leaveto care for the spouse. It also would protect an individual whodoes volunteer work for people with  AIDS  from a discriminatoryemployment action motivated by that relationship orassociation.
- Q. Will the ADA increase litigation burdens onemployers?
- A. Some litigation is inevitable. However, employers who usethe period prior to the effective date of employment coverage toadjust their policies and practices to conform to  ADA  requirementswill be much less likely to have serious litigation concerns. Indrafting the  ADA , Congress relied heavily on the language of theRehabilitation Act of 1973 and its implementing regulations. Thereis already an extensive body of law interpreting the requirementsof that Act to which employers can turn for guidance on their  ADA obligations. The Equal Employment Opportunity Commission, which hasissued regulations implementing the  ADA 's title I employmentprovisions, published a technical assistance manual with guidanceon how to comply and will provide other assistance to helpemployers meet  ADA  requirements. Equal employment opportunity forpeople with disabilities will be achieved most quickly andeffectively through widespread voluntary compliance with the law,rather than through reliance on litigation to enforcecompliance.
- Q. How are the employment provisionsenforced?
- A. The employment provisions of title I of the  ADA  are enforcedunder the same procedures applicable to race, sex, national origin,and religious discrimination under title VII of the Civil RightsAct of 1964. Complaints regarding actions that occur on or afterJuly 26, 1992, may be filed with the Equal Employment OpportunityCommission or designated State human rights agencies. Remedies mayinclude hiring, reinstatement, back pay, court orders to stopdiscrimination, and reasonable accommodation. Compensatory damagesmay be awarded for actual monetary losses and for future monetarylosses, mental anguish, and inconvenience. Punitive damages may beavailable as well, if an employer acts with malice or recklessindifference. Attorney's fees may also be awarded.

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*This page was last modified on January 15, 1997.*

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