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| Americans with Disabilities Act | |
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The American Cancer Society does not offer legal advice. This information is given only to provide general background in this area of the law. What is the Americans with Disabilities Act? The Americans with Disabilities Act of 1990 (ADA) gives civil rights protections to people with disabilities. It can help people with disabilities gain equal opportunity in:
What is a disability under ADA? The Americans with Disabilities Act may apply to you if:
On January 1, 2009, the ADA Amendments Act of 2008 went into effect. This new Act made some major changes to the way the definition of disability has been interpreted under ADA in the past. Some of the "major life activities" covered by ADA include but are not limited to caring for yourself, doing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The 2008 amendment also includes major body functions, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. This change can help people with cancer, since they often had a hard time meeting the definition of disability. Questions and answers about employment discrimination The next part of this document deals only with employment discrimination, a potential problem for people who have had cancer. The section of the ADA that applies to your job is called Title I. After the discussion of jobs, this document has information about the ADA in settings and situations other than your job. The sections of the ADA that apply to these different settings and situations are Titles II through V. Does the ADA apply to my employer? The law applies to employers with 15 or more employees. Job discrimination against people with disabilities by these employers is not legal if practiced by:
Employees of the U.S. government are not covered under the ADA. But they have the same protections under a different law, which is enforced by the Office of Federal Operations of the EEOC. To file a complaint, the federal employee must first contact an equal employment opportunity counselor at the agency in which they believe the discrimination took place. You can read more about these protections at: www.eeoc.gov/federal/employees.html. Whom does the ADA cover? In order to be protected by the ADA at work, you must be qualified and able to perform the "essential functions" of the job. See the section, "What are the essential functions of a job under ADA?" Although the ADA defines the term disability, it does not include a list of conditions that are always considered disabilities. Instead, each case must be looked at on its own merits. According to the United States Equal Employment Opportunities Commission (EEOC), cancer is not always considered a disability. The ADA can help protect you when your cancer prevents or severely restricts you from doing the many tasks required for most people's daily lives, such as household chores, bathing, and brushing your teeth. But this kind of disability must be permanent or long-term. The ADA also protects you if you had cancer in the past, but are doing well now. An employer may not discriminate against you because you used to be sick. The ADA prevents an employer from discriminating against you if he or she thinks you are sick, even if you aren't. Which employment practices does the ADA cover? If you have a disability and are qualified for a job, the ADA makes it unlawful for the employers noted above to discriminate in employment practices, such as:
It is unlawful for an employer to take action against you because you ask for your rights under the ADA. The Act also protects you if you are discriminated against because of your family, business, social, or other type of relationship or association with a person who has a disability. That means an employer cannot discriminate against you because, say, your spouse has cancer. Still, the ADA does not completely protect your job just because you have a disability and are qualified for the job. The employer can still fire or lay off (terminate) an employee with a disability for legitimate business reasons. For instance, a disabled worker would not be protected during downsizing. What are the essential functions of a job under ADA? If you have a disability, you must be qualified to perform the essential functions of a job in order to be protected from job discrimination by the ADA. Essential functions are the fundamental duties required by the job itself. An employer cannot refuse to hire you because your disability prevents you from performing duties that are not essential to the job. But you must satisfy the employer's job requirements such as education, employment experience, skills, or licenses. Employers are not required to lower their job standards to accommodate someone with a disability. Nor do they have to provide personal-use items such as glasses or hearing aids. You also must be able to perform the essential functions of the job either on your own or with reasonable accommodation (see definition in the next paragraph.) What is reasonable accommodation under ADA? Reasonable accommodation is how an employer adapts so that a disabled person can work. It usually refers to any change or adjustment to a job that lets an employee with a disability perform the essential functions of that job. It may also be a change in procedure that allows a qualified person to apply for a job. Finally, reasonable accommodation can be a change that allows a disabled person to enjoy benefits and privileges of employment the same as those enjoyed by employees without disabilities. Examples of reasonable accommodations may include:
An employer must accommodate a qualified applicant or employee with a disability unless the employer can show that making the accommodation would not be reasonable. That means that the accommodation would be very difficult or expensive (an "undue hardship" or unreasonable). These factors include the type and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. In general, a larger employer would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer. A 2006 survey by the University of Iowa's Law, Health Policy, and Disability Center and reported by the Job Accommodation Network found that more than half of accommodations involved no cost at all. Of those that cost money, the average amount spent by the employer is around $500. The facts of your case will help determine whether an accommodation will make it possible for you to do the job and, if so, what kind of accommodation is needed. Employers do not have to know about every kind of disability to know whether or how to make a reasonable accommodation. They are required to accommodate only those disabilities they know about and that do not cause too much hardship for the employer. The requirement is usually triggered by a request from a person with a disability, who often can suggest a workable accommodation. Accommodations must be made on case-by-case basis because the type and extent of a disability and the requirements of the job will vary in each case. If you do not ask for an accommodation, the employer is not required to provide one. If you ask for an accommodation, but cannot suggest one that will work for you, you and the employer should work together to identify one. There are also many public and private resources that can provide help without cost. See the "Additional resources" section for some places to start. What are employers allowed to ask job applicants with disabilities under ADA? When you apply for a job, employers can't ask you if you are disabled. They also cannot ask about what type or how severe a disability you have. Employers also may not ask you if you have or have ever had cancer. But they can ask you about your ability to perform certain job tasks. An employer can ask you to describe or to show them how, with or without reasonable accommodation, you will perform the duties of the job. If all new employees in similar jobs are required to have a medical exam, you may be offered a job conditionally, pending the results of a medical exam. The medical exams must be related to the job and in line with the employer's business needs. But an employer cannot reject you because of information the medical exam reveals about your disability unless the reasons for rejection are related to the job and necessary to conduct the employer's business. The results of all medical exams must be kept confidential. Medical files must be kept separate from work or personnel files. Should I tell my employer I have a disability? If you think you will need accommodation in order to apply for a job or to perform essential job functions, you should tell the employer that you have a disability. Employers are only required to provide reasonable accommodation if they know about the disability. Generally, the employee is the person who must tell the employer that an accommodation is needed. But you are not required to offer information about having cancer or another disability when you apply for a job. Does my employer have to provide any accommodation I request? No. There is some flexibility built into the reasonable accommodation requirement under the ADA. For example:
Under ADA, does the employer have to hire a qualified applicant with a disability over other qualified applicants? No. The ADA does not require an employer to hire a person with a disability over other applicants because the person has a disability. The ADA only prohibits discrimination on the basis of disability. It makes it unlawful to refuse to hire a qualified applicant with a disability just because he or she is disabled. It's also unlawful to refuse to hire the qualified person because a reasonable accommodation is required to make it possible for this person to perform essential job functions. Do I have to pay for it if I need reasonable accommodation under ADA? Generally, no. The ADA requires the employer to provide the accommodation unless doing so would cause an undue hardship on the employer's business. If the cost of providing the needed accommodation would be too much, you must be given the choice of
An employer cannot make up the cost of providing a reasonable accommodation by lowering your salary or paying you less than other employees in similar jobs. Under ADA, can an employer offer a health insurance policy that excludes coverage for pre-existing conditions? Yes. The ADA does not affect pre-existing condition clauses in health insurance policies, even though such clauses may harm employees with disabilities more than other employees. But other laws may limit the employer's use of pre-existing condition exclusions for employees in group health plans. See our document, What is HIPAA? for more information. If the health insurance offered by my employer does not cover all medical expenses related to my disability, does the company have to get extra coverage for me under ADA? No. The ADA only requires an employer to provide employees with disabilities equal access to whatever health insurance coverage is offered to other employees. The same is true for employees with cancer or for employees who have family members with cancer or a history of cancer. Under ADA, does an employer have to make non-work areas used by employees, such as cafeterias, lounges, or employer-provided transportation, accessible to people with disabilities? Yes, unless making these changes would pose an undue hardship on the employer. Employers must accommodate the disabled person for all services, programs, and non-work facilities they provide, if the changes are reasonable. If making an existing facility accessible would be an undue hardship, the employer can provide a comparable facility that will enable a person with a disability to enjoy the same benefits and privileges of employment as those enjoyed by other employees, unless doing so also would be an undue hardship. What agency enforces ADA job protections? The Equal Employment Opportunities Commission (EEOC), along with state and local civil rights enforcement agencies, enforces the part of the ADA that covers employment protection. Between 1992 and September 2008, 2.6% of the charges filed and resolved under the ADA involved people with cancer. More than 7,000 people with cancer have contacted the EEOC with complaints about disability-related discrimination and had their cases resolved. What should I do if I think I'm being discriminated against in a work situation because of my disability? If you think you have been discriminated against in an employment practice because of a disability, you can file a complaint with an Equal Employment Opportunity Commission (EEOC) field office located in certain cities throughout the United States. See the "Additional resources" section at the end of this document for contact information. If your employer is a state or local government, you should contact the U.S. Department of Justice (read on for more details). A discrimination charge generally must be filed with the EEOC within 180 days of the action that you believe to be discriminatory. If a state or local law covers discrimination on the basis of disability, the charge must be filed with the proper state or local fair employment practice agency within 300 days of the discriminatory action. EEOC field offices can refer you to the agencies that enforce those laws (see "Additional resources" section). But to protect your rights, it is best to contact the EEOC right away if you suspect discrimination, at 1-800-669-4000. If you work for the U.S. government, you have only 45 days to contact your agency EEOC officer, and the process is somewhat different from that for private employers. See the section "Does the ADA apply to my employer?" If the EEOC decides that you have been discriminated against, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You also may be entitled to payment of your legal fees. Keep in mind that these decisions may take a long time depending on the nature of the claim and how it is resolved. If the EEOC does not believe discrimination has occurred, or when attempts to resolve the problem have failed and the EEOC decides not to sue on your behalf, you can request a "right to sue" letter from the EEOC 180 days after filing your complaint. After you get this notice of right to sue, you have 90 days to file the suit. If you sue, you may want to hire a private attorney to represent you. How the ADA can help in settings besides work This section deals only with discrimination in settings other than work. What are "public accommodations" as defined by ADA? Places of public accommodation include places that are generally open to everyone, such as restaurants, hotels, theaters, doctors' offices, drug stores, retail stores, museums, libraries, parks, private schools, and day care centers. The ADA requires the property administrators of these kinds of public places to remove barriers when it is "readily achievable" to do so. This means that it must be fairly easy to do without much trouble or expense. Examples of removing barriers would include making a simple ramp over a few steps or other modest adjustments to parts of a public place's physical structure that may impose barriers for people with disabilities. Private clubs and religious organizations are not required to meet the ADA's requirements for public accommodations. The United States Department of Justice enforces the ADA requirements in 3 areas:
Title IV of the ADA covers people with hearing and speech problems, and is enforced by the Federal Communications Commission (the FCC). See the "Additional resources" section for more on those rules, or visit http://www.fcc.gov/cgb/dro/title4.html. Title V of the ADA covers a handful of related aspects such as how the law is enforced and its interaction with other laws. Where can I find information about discrimination in areas other than employment? The U.S. Department of Justice has a toll-free ADA Information Line (see "Additional resources," below.) This service permits businesses, state and local government officials, or others to call and ask questions about general or specific ADA requirements, including questions about the ADA Standards for Accessible Design. ADA specialists are available Monday through Friday from 9:30 a.m. until 5:30 p.m. (Eastern Time) except on Thursdays, when the hours are 12:30 p.m. until 5:30 p.m. A Spanish language service is also available. More information from your American Cancer Society The following related information may also be helpful to you. These materials may be ordered from our toll-free number, 1-800-ACS-2345.
National organizations and Web sites* In addition to the American Cancer Society, other sources of patient information and support include the following, which have more specific information about ADA requirements affecting employment: US Equal
Employment Opportunity Commission (EEOC)
Job
Accommodation Network (a free service of the US Department
of Labor)
For more information about the Americans with Disabilities Act: ADA Information
Line
At this number or Web site, you can obtain general information about the Americans with Disabilities Act, answers to specific technical questions, free ADA materials, or information about filing a complaint. Selected ADA materials are listed below, although many more are available from the ADA: ADA Questions and Answers. A 31-page booklet giving an overview of the ADA's requirements for ensuring equal opportunity for people with disabilities in employment, state and local government services, public accommodations, commercial facilities, and transportation, and requiring the establishment of TDD/telephone relay services. (Spanish, Cambodian, Chinese, Hmong, Japanese, Korean, Laotian, Tagalog, and Vietnamese editions are also available from the ADA Information Line.) A Guide to Disability Rights Laws. A 21-page booklet that gives a brief overview of 11 federal laws that protect the rights of people with disabilities and information about the federal agencies to contact for more information on specific requirements. (Spanish, Cambodian, Chinese, Hmong, Japanese, Korean, Laotian, Tagalog, and Vietnamese editions are also available from the ADA Information Line.) ADA Tax Incentive Packet for Businesses. A packet of information to help businesses understand and take advantage of the tax credit and deduction available for complying with the ADA. A Guide for People with Disabilities Seeking Employment. A 2-page pamphlet for people with disabilities that gives a general explanation of the employment provisions of the ADA and how to file a complaint with the Equal Employment Opportunity Commission. (A Spanish edition is available from the ADA Information Line.) Ten Small Business Mistakes video. This 13-minute streaming video identifies common mistakes that small businesses make in trying to comply with the ADA. The video features statements by store owners expressing doubts or misunderstandings about the ADA followed by responses that explain the law in common-sense terms. The ADA and City Governments: Common Problems. A 9-page document that contains a sampling of common problems shared by city governments of all sizes, gives examples of common deficiencies and explains how these problems affect persons with disabilities. For more specific information about ADA requirements affecting services provided by state and local governments, including programs, services, and public transportation, contact the following: Office on the
Americans with Disabilities For information on public transportation only, contact the following: Federal Transit
Administration For more specific information about accessible transportation, contact: Easter Seals
Project ACTION For more specific information about requirements for accessible design in new construction and alterations, contact: Access Board or
Architectural and Transportation Barriers Compliance Board For technical assistance on ADA telephone service requirements (Telephone Relay Systems), contact the following: Federal
Communications Commission For Social Security Disability Income and Supplemental Security Income information (if you cannot work): Social Security
Administration *Inclusion on this list does not imply endorsement by the American Cancer Society. No matter who you are, we can help. Contact us anytime, day or night, for information and support. Call us at 1-800-ACS-2345 or visit cancer.org. References Equal Employment Opportunity Commission, ADA Charge Data by Impairment/Bases - Resolutions FY 1997 - FY 2008. Available at: http://www.eeoc.gov/stats/ada-resolutions.html. Accessed March 20, 2009. Job Accommodation Network. Available at: www.jan.wvu.edu. Accessed March 3, 2008. Job Accommodation Network Fact Sheet Series. Workplace Accommodations: Low Cost, High Impact. Available at: http://www.jan.wvu.edu/media/LowCostHighImpact.doc. Accessed March 6, 2008. Job Accommodation Network. Accommodation and Compliance Series: The ADA Amendments Act of 2008. Accessed at: www.jan.wvu.edu/bulletins/adaaa1.htm on March 20, 2009. US Department of Justice. Americans with Disabilities Act Information and Technical Assistance, rev. 12/17/04. Available at: www.ada.gov. Accessed March 3, 2008. US Department of Justice. A Guide to Disability Rights Laws, September 2005. Accessed at: http://www.ada.gov/cguide.htm on March 24, 2009. US Department of Labor, Office of Disability Employment Policy. Employment rights: Who has them and who enforces them. Accessed at www.dol.gov/odep/pubs/fact/rights.htm on March 23, 2009. Last Medical Review: 04/10/2009 |