The Americans With Disabilities Act of 1990 (ADA) makes it unlawful to discriminate in employment against a qualified individual with disabilities. The ADA also outlaws discrimination against individuals with disabilities in state and local government services, public accommodations, transportation and telecommunications. This chapter concerns Title I of the ADA which prohibits job discrimination.

Coverage. Job discrimination against people with disabilities is illegal if practiced by:

1. Private Employers

2. State and local governments

3. Employment agencies

4. Labor organizations

5. Labor-management committees

The part of the ADA enforced by the Equal Employment Opportunity Commission (EEOC) outlaws job discrimination by:

1. All employers, including state and local government employers, with 25 or more employees after July 26, 1992; and

2. All employers, including state and local government employers, with 15 or more employees after July 26, 1994.

Another part of the ADA, enforced by the U.S. Department of Justice (DOJ), prohibits discrimination in state and local government programs and activities, including job discrimination by all state and local governments, regardless of the number of employees, after January 26, 1992.

Because the ADA gives responsibilities to both EEOC and DOJ for employment by state and local governments, these agencies will coordinate the federal enforcement effort. In addition, since some private and governmental employers are already covered by nondiscrimination and affirmative action requirements under the Rehabilitation Act of 1973, EEOC, DOJ and the Department of Labor also will coordinate the enforcement effort under the ADA and the Rehabilitation Act.

Employment Practices Covered. The ADA makes it unlawful to discriminate in all employment practices such as:

• recruitment
• pay
• hiring
• firing
• promotion
• job assignments
• training
• leave
• lay-off
• benefit
• all other employment related activities

The ADA prohibits an employer from retaliating against an applicant or employee for asserting his rights under the ADA. The Act also makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the individual's family business, social or other relationship or association with an individual with a disability.

Protected Individuals. Title I of the ADA protects qualified individuals with disabilities from employment discrimination. Under the ADA, a person has a disability if he has a physical or mental impairment that substantially limits a major life activity. The ADA also protects individuals who have a record of a substantially limiting impairment and people who are regarded as having a substantially limiting impairment.

To be protected under the ADA, an individual must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning or working.

An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation, in order to be protected by the ADA. This means that the applicant or employee must:

1. Satisfy your job requirements for educational background, employment Experience, skills, licenses, and any other qualification standards that are job related; and

2. Be able to perform those tasks that are essential to the job, with or without reasonable accommodation.

The ADA does not interfere with your right to hire the best qualified applicant. Nor does the ADA impose any affirmative action obligations. The ADA simply prohibits you from discriminating against a qualified applicant or employee because of her disability.

Definition of "disability". In March, 1995, the EEOC issued a set of guidelines to assist in determining whether a person has a disability under the ADA. A charging party has a disability under the ADA if the person has a physical or mental impairment that substantially limits a major life activity; has a record of such an impairment; or is regarded as having such an impairment.

1. Impairment. Some examples of "impairments" include cosmetic disfigurements, anatomical loss affecting the neurological or musculoskeletal systems, special sense organs, respiratory, cardiovascular, reproductive, digestive, or certain other body systems, mental retardation, specific learning disabilities, emotional or mental illness, complications from pregnancy, dwarfism, severe obesity (body weight more than 100% over the norm), obesity as a result of a physiological disorder, contagious disease, and HIV infection. The fact that an individual has an impairment does not mean that it is a disability. To be a disability the impairment must substantially limit or be regarded as substantially limiting one or more major life activities.

2. Substantially limits. An impairment is substantially limiting if it prohibits or significantly restricts an individual's ability to perform a major life activity as compared to the ability of the average person in the general population to perform the same activity. The determination depends on the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long-term impact of the impairment.

3. Major life activity. The EEOC's guidelines define major life activities to include, among others, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, reaching, and mental and emotional processes such as thinking, concentrating, and interacting with others.

U.S. Supreme Court rules that asymptomatic HIV is a "disability" under the ADA. The U.S. Supreme Court has addressed the issue of whether asymptomatic HIV is a disability under the Americans With Disabilities Act (ADA). Bragdon v. Sidney Abbott, decided June 25, 1998. The case concerned public accommodation under the ADA, but is relevant to ADA employment cases. The Respondent, Sidney Abbott, was infected with HIV since 1986, and her infection had not manifested its most serious symptoms during the incidents important to her lawsuit. In September, 1994, Ms. Abbott went to the office of Randon Bragdon for a dental appointment. Abbott disclosed her HIV infection on the patient registration form, and after a cavity was discovered, Mr. Bragdon informed Abbott of his policy against filling cavities of HIV-infected patients in his office and offered to perform the work at the hospital. There would be no additional fee, but Abbott would be responsible for the cost of using the hospital's facilities. Abbott sued Bragdon under the ADA, alleging discrimination in the provision of public accommodation.

The Supreme Court found that even though Abbott's HIV infection had not progressed to the symptomatic phase, it was a disability under the definitional section of the ADA. In other words, it was a physical impairment that substantially limited one or more of an individual's major life activities. The Court concluded that an HIV infected woman's ability to reproduce is substantially limited. The Supreme Court remanded the case to determine whether the HIV infection posed a direct threat to the health and safety of others.

U.S. Supreme Court Narrows Who Is "Disabled" Under ADA The U.S. Supreme Court's decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams rejected the discrimination claim of a terminated employee with carpal tunnel syndrome, and determined who is "disabled" under the ADA.

The U. S. Supreme Court limited its review of the case to the proper legal standard for assessing whether an individual is substantially limited in performing manual tasks. "When addressing the major life activity of performing manual tasks, the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job," said the Court. "Manual tasks unique to any particular job are not necessarily important parts of most people's lives. As a result, occupation specific tasks may have only limited relevance to the manual task inquiry."

In the Court's words, "... household chores, bathing, and brushing one's teeth are among the types of manual tasks of central importance to people's daily lives, and should have been part of the assessment of whether respondent was substantially limited in performing manual tasks." The Court also noted that not everyone with carpal tunnel syndrome is disabled, and that each individual must be assessed on a case-by-case basis to determine whether he or she is protected by the ADA. Both the severity and the duration of the symptoms of CTS vary, and the Court advised the lower courts to look closely at impairments that are not permanent, since to be disabled under the ADA, the impact of the impairment must be "permanent or long term."

Exceptions to the definition of "disability". Certain conditions are excluded from the definition of disability, including: (1) Homosexuality and bisexuality; (2) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (3) Compulsive gambling, kleptomania, or pyromania; (4) The current use of illegal drugs and psychoactive substance use disorders resulting from the current illegal use of drugs. However, a person may be considered to have a disability under the ADA if they are addicted or perceived to be addicted to a controlled substance. Occasional, casual illegal use of drugs does not constitute a disability.

Essential functions. Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential to performance. (This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing).

Factors to consider in determining if a function is essential include:

1. Whether the reason the position exists is to perform that function.

2. The number of other employees available to perform the function or among whom the performance of the function can be distributed; and

3. The degree of expertise or skill required to perform the function.

Your judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions. Other kinds of evidence that EEOC will consider include:

1. Actual work experience of present or past employees in the job;

2. Time spent performing a function;

3. Consequences of not requiring that an employee perform a function; and

4. Terms of a collective bargaining agreement.

The obligation to provide reasonable accommodations. Reasonable accommodation is a change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include:

1. Acquiring or modifying equipment or devices;

2. Job restructuring;

3. Part-time or modified work schedules;

4. Reassignment to a vacant position;

5. Adjusting or modifying examination, training materials or policies;

6. Providing readers and interpreters; and

7. Making the workplace readily accessible to and usable by people with disabilities.

Reasonable accommodation also must be made to enable an individual with a disability to participate in the application process and to enjoy benefits and privileges of employment equal to those available to other employees.

It is a violation of the ADA to fail to provide reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability, unless to do so would impose an undue hardship on the operation of your business. Undue hardship means that the accommodation would require significant difficulty or expense.

How to identify a reasonable accommodation. Frequently, when a qualified individual with a disability requests a reasonable accommodation, the appropriate accommodation is obvious. The individual may suggest a reasonable accommodation based upon her own life or work experience. However, when the appropriate accommodation is not readily apparent, you must make a reasonable effort to identify one. The best way to do this is to consult informally with the applicant or employee about potential accommodations that would enable the individual to participate in the application process or perform the essential functions of the job. If this consultation does not identify an appropriate accommodation, you may contact the EEOC, state or local vocational rehabilitation agencies, or state or local organizations representing or providing services to individuals with disabilities. Another resource is the Job Accommodation Network (JAN). JAN is a free consultant service that helps employers make individualized accommodations. The telephone number is 1-800-526-7234.

When does a reasonable accommodation become an undue hardship? It is not necessary to provide a reasonable accommodation if doing so would cause an undue hardship. Undue hardship means that an accommodation would be unduly costly, expensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business. Among the factors to be considered in determining whether an accommodation is an undue hardship are the cost of the accommodation, the employer's size, financial resources and the nature and structure of its operation.

If a particular accommodation would be an undue hardship, you must try to identify another accommodation that will not pose such a hardship. If cost causes the undue hardship, you must also consider whether funding for an accommodation is available from an outside source, such as a vocational rehabilitation agency, and if the cost of providing the accommodation can be offset by state or federal tax credits or deductions. You must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes an undue hardship.

Supreme Court Rules Employer Usually Not Required to Violate Seniority System to Accommodate In US Airways, Inc. v. Barnett the Supreme Court held that, in most cases, the ADA does not require an employer to violate a bona fide seniority system as a reasonable accommodation. The Court fashioned a rule that could be considered by some as a "compromise." Essentially, the ruling establishes a burden shifting approach to analyzing requests for accommodations under the ADA. At the outset, an employee carries the burden of proving that an accommodation is "reasonable." An employee can do this by showing that the accommodation is "reasonable on its face" or, assuming it is not, that there are "special circumstances" that make the accommodation "reasonable" in the specific situation at hand. Once this is established, the burden then shifts to the employer to prove the proposed accommodation poses an undue hardship on the operation of the business.

Medical examinations or inquiries. The ADA does not prevent employers from obtaining medical and related information necessary to evaluate the ability of applicants and employees to perform essential functions, or to promote health and safety on the job. However, to protect individuals with a disability from actions based on such information that are not job related and consistent with business necessity, including protection of health and safety, the ADA imposes specific and differing obligations on the employer at three stages of the employment process:

1. Before making a job offer, an employer may not make any medical inquiry or conduct any medical examination.

2. After making a conditional job offer, but before a person starts work, an employer may make unrestricted medical inquiries, but may not refuse to hire an individual with a disability based on the results of such inquiries, unless the reason for rejection is job related and justified by business necessity.

3. After employment, any medical examination or inquiry required of an employee must be job related and justified by business necessity. Exceptions are voluntary examinations conducted as part of employee health programs and examinations required by other federal laws.

When an individual is rejected as a direct threat to health and safety, the employer must be prepared to show:

1. A significant current risk of substantial harm (not a speculative or remote risk);

2. The specific risk must be identified;

3. The risk must be documented by objective medical or other factual evidence regarding the particular individuals; and

4. Even if a genuine significant risk of substantial harm exists, the employer must consider whether it can be eliminated or reduced below the level of a direct threat by reasonable accommodation.

The results of all medical examinations or information from inquiries about a disability must be kept confidential, and maintained in separate medical files. You may provide medical information required by state workers' compensation laws to the agencies that administer such laws. (For more information concerning preemployment medical examinations or inquiries, see Chapter Two).

Do individuals who use drugs illegally have rights under the ADA? Anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use. The ADA does not prevent employers from testing applicants or employees for current illegal drug use, or from making employment decisions based on verifiable results. A test for the illegal use of drugs is not considered a medical examination under the ADA; therefore, it is not a prohibited pre-employment medical examination, and you will not have to show that the administration of the test to employees is job related and consistent with business necessity. The ADA does not encourage, authorize or prohibit drug tests.

Enforcement of the ADA. The provisions of the ADA which prohibit job discrimination are enforced by the U.S. Equal Employment Opportunity Commission. After July 26, 1992, individuals who believe they have been discriminated against on the basis of their disability can file a charge with the Commission at any of its offices located throughout the United States. A charge of discrimination must be filed within 180 days of the discrimination, unless there is a state or local law that also provides relief for the discrimination on the basis of disability. In most cases where there is such a law, the complainant has 300 days to file a charge.

WORKER'S COMPENSATION AND WORK-RELATED INJURIES

Do's and Don'ts:

• An employer may not inquire into an applicant's workers' compensation history before making a conditional offer of employment.
• After making a conditional job offer, an employer may ask about a person's workers' compensation history in a medical inquiry or examination that is required of all applicants in the same job category.
• An employer may not base an employment decision on the speculation that an applicant may cause increased workers' compensation costs in the future. However, an employer may refuse to hire, or may discharge an individual who is not currently able to perform a job without posing a significant risk of substantial harm to the health or safety of the individual or others, if the risk cannot be eliminated or reduced by reasonable accommodation.
• An employer may submit medical information and records concerning employees and applicants (obtained after a conditional job offer) to state workers' compensation offices and "second injury" funds without violating ADA confidentiality requirements.
• Only injured workers who meet the ADA's definition of an "individual with a disability" will be considered disabled under the ADA, regardless of whether they satisfy criteria for receiving benefits under workers' compensation or other disability laws. A worker also must be "qualified" (with or without reasonable accommodation) to be protected by the ADA.

Is an injured worker protected by the ADA? Whether an injured worker is protected by the ADA will depend on whether or not the person meets the ADA definitions of an "individual with a disability" and "qualified individual with a disability". The person must have an impairment that "substantially limits a major life activity", have a "record of" or be "regarded as" having such an impairment. She/he also must be able to perform the essential functions of a job currently held or desired, with or without an accommodation.

Clearly, not every employee injured on the job will meet the ADA definition. Work-related injuries do not always cause physical or mental impairments severe enough to "substantially limit" a major life activity. Also, many on-the-job injuries cause non-chronic impairments which heal within a short period of time with little or no long-term or permanent impact. Such injuries, in most circumstances, are not considered disabilities under the ADA.

The fact that an employee is awarded workers' compensation benefits, or is assigned a high workers' compensation disability rating, does not automatically establish that the person is protected by the ADA. In most cases, the definition of disability under state workers' compensation laws differs from that under the ADA, because the state laws serve a different purpose. Workers' compensation laws are designed to provide needed assistance to workers who suffer many kinds of injuries, whereas the ADA's purpose is to protect people from discrimination on the basis of disability.

Thus, many injured workers who qualify for benefits under workers' compensation or other disability benefits laws may not be protected by the ADA. An employer must consider work-related injuries on a case-by-case basis to know if a worker is protected by the ADA. Many job injuries are not "disabling" under the ADA, but it also is possible that an impairment which is not "substantially limiting" in one circumstance could result in, or lead to, disability in other circumstances.

For example: Suppose a construction worker falls from a ladder and breaks a leg and the leg heals normally within a few months. Although this worker may be awarded workers' compensation benefits for the injury, he would not be considered a person with a disability under the ADA. The impairment suffered from the injury did not "substantially limit" a major life activity, since the injury healed within a short period and had little or no long-term impact. However, if the worker's leg took significantly longer to heal than the usual healing period for this type of injury, and during this period the worker could not walk, she/he would be considered to have a disability. Or, if the injury caused a permanent limp, the worker might be considered disabled under the ADA if the limp substantially limited his walking, as compared to the average person in the general population.

If an employee was seriously injured while working for a former employer, and was unable to work for a year because of the injury, he would have a "record of" a substantially limiting impairment. If an employer refused to hire or promote this person on the basis of that record, even if she/he had recovered in whole or in part from the injury, this would be a violation of the ADA.

If an impairment or condition caused by an on-the-job injury does not substantially limit an employee's ability to work, but the employer regards the individual as having an impairment that makes him/her unable to perform a class of jobs, such as "heavy labor", this individual would be "regarded" by the employer as having a disability. An employer who refused to hire or discharged an individual because of this perception would violate the ADA.

Of course, in each of the examples above, the employer would only be liable for discrimination if the individual was qualified for the position held or desired, with or without an accommodation.

The ADA allows an employer to take reasonable steps to avoid increased workers' compensation liability while protecting persons with disabilities against exclusion from jobs they can safely perform.

Steps the employer may take to avoid liability. The ADA allows an employer to take reasonable steps to avoid increased workers' compensation liability while protecting persons with disabilities against exclusion from jobs they can safely perform.

After making a conditional job offer, an employer may inquire about a person's workers' compensation history in a medical inquiry or examination that is required of all applicants in the same job category.

The employer may use information from medical inquiries and examinations for various purposes, such as:

• to verify employment history.
• to screen out applicants with a history of fraudulent workers' compensation claims.
• to provide information to state officials as required by state laws regulating workers' compensation and "second injury" funds.
• to screen out individuals who would pose a "direct threat" to health or safety of themselves or others, which could not be reduced to an acceptable level or eliminated by a reasonable accommodation.

Medical examinations. An employer may only make medical examinations or inquiries of an employee regarding disability if such examinations are job-related and consistent with business necessity. If a worker has an on-the-job injury which appears to affect his/her ability to do essential job functions, a medical examination or inquiry is job-related and consistent with business necessity. A medical examination or inquiry also may be necessary to provide reasonable accommodation.

The ADA prohibits an employer from discriminating against a person with a disability who is "qualified" for a desired job. The employer cannot refuse to let an individual with a disability return to work because the worker is not fully recovered from injury, unless she/he: (1) cannot perform the essential functions of the job she/he holds or desires with or without an accommodation; or (2) would pose a significant risk of substantial harm that could not be reduced to an acceptable level with reasonable accommodation. Since reasonable accommodation may include reassignment to a vacant position, an employer may be required to consider an employee's qualifications to perform other vacant jobs for which she/he is qualified, as well as the job held when injured.

" Light Duty" jobs. Many employers have established "light duty" positions to respond to medical restrictions on workers recovering from job-related injuries, in order to reduce workers' compensation liability. Such positions usually place few physical demands on an employee and may include tasks such as answering the telephone and simple administrative work. An employee's placement in such a position is often limited by the employer to a specific period of time.

The ADA does not require an employer to create a "light duty" position unless the "heavy duty" tasks an injured worker can no longer perform are marginal job functions which may be reallocated to co-workers as part of the reasonable accommodation of job-restructuring. In most cases however, "light duty" positions involve a totally different job from the job that a worker performed before the injury. Creating such positions by job restructuring is not required by the ADA. However, if an employer already has a vacant light duty position for which an injured worker is qualified, it might be a reasonable accommodation to reassign the worker to that position. If the position was created as a temporary job, a reassignment to that position need only be for a temporary period.

When an employer places an injured worker in a temporary "light duty" position, that worker is "otherwise qualified" for that position for the term of that position; a worker's qualifications must be gauged in relation to the position occupied, not in relation to the job held prior to the injury. It may be necessary to provide additional reasonable accommodation to enable an injured worker in a light duty position to perform the essential functions of that position.

For example: Suppose a telephone line repair worker broke both legs and fractured her knee joints in a fall. The treating physician states that the worker will not be able to walk, even with crutches, for at least nine months. She therefore has a "disability". Currently using a wheelchair, and unable to do her previous job, she is placed in a "light duty" position to process paperwork associated with line repairs. However, the office to which she is assigned is not wheelchair accessible. It would be a reasonable accommodation to place the employee in an office that is accessible. Or, the office could be made accessible by widening the office door, if this would not be an undue hardship. The employer also might have to modify the employee's work schedule so that she could attend weekly physical therapy sessions.

Medical information may be very useful to an employer who must decide whether an injured worker can come back to work, in what job, and, if necessary, with what accommodations. A physician may provide an employer with relevant information about an employee's functional abilities, limitations, and work restrictions. This information will be useful in determining how to return the employee to productive work, but the employer bears the ultimate responsibility for deciding whether the individual is qualified, with or without a reasonable accommodation. Therefore, an employer cannot avoid liability if it relies on a physician's advice which is not consistent with ADA requirements.

Compliance with state workers' compensation laws. ADA requirements supersede any conflicting state workers' compensation laws.

For example: Some state workers' compensation statutes make an employer liable for paying additional benefits if an injury occurs because the employer assigned a person to a position likely to jeopardize the person's health or safety, or exacerbate an earlier workers' compensation injury. Some of these laws may permit or require an employer to exclude a disabled individual from employment in cases where the ADA would not permit such exclusion. In these cases, the ADA takes precedence over the state law. An employer could not assert, as a valid defense to a charge of discrimination, that it failed to hire or return to work an individual with a disability because doing so would violate a state workers' compensation law that required exclusion of this individual.

Does filing a workers' compensation claim prevent filing an ADA charge? Filing a workers' compensation claim does not prevent an injured worker from filing a charge under the ADA. "Exclusivity" clauses in state workers' compensation laws bar all other civil remedies related to an injury that has been compensated by a workers' compensation system. However, these clauses do not prohibit a qualified individual with a disability from filing a discrimination charge with EEOC, or filing a suit under the ADA, if issued a "right to sue" letter by EEOC.

What if an applicant or an employee provides false medical information?
An employer may refuse to hire or may fire a person who knowingly provides a false answer to a lawful post-offer inquiry about his/her condition or workers' compensation history. However, it may be difficult to determine the real reason for the termination, and for this reason employers should be careful and seek counsel in these cases.

Some state workers' compensation laws release an employer from its obligation to pay benefits if a worker falsely represents his/her health or physical condition at the time of hire and is later injured as a result. The ADA does not prevent use of this defense to a workers' compensation claim. The ADA requires only that information requests about health or workers' compensation history are made as part of a post-offer medical examination or inquiry.

Amendments to ADA Effective January 1, 2009

A new law, entitled the ADA Amendments Act of 2008 overturns several landmark Supreme Court decisions narrowly interpreting the definition of "disability" and will make disposing of ADA cases prior to trial more challenging for employers. The changes to the ADA take effect on January 1, 2009. The changes include:

1. The ADAAA changes the standard for determining discrimination under the ADA by prohibiting discrimination against a qualified individual on the basis of disability. This is a change from the previous law which prohibited discrimination against a qualified individual with a disability because of the disability of such individual. The intent of this change is to spend less time on whether a person is disabled by broadening the definition of disability. However, it is the employee's burden to establish that he or she is a qualified individual with a physical or mental impairment who can perform the essential functions of the job.

2. ADAAA amends the definition of "disability" and "substantially limiting" to be construed in favor of broad coverage of individuals under the Act, and to the maximum extent permitted by the Act. Impairments that are episodic or in remission must be considered in their active state; however, impairments that are minor or transitory are not protected disabilities under federal law (you still must consider state and local law). In addition, the ADAAA provides that an impairment need only substantially limit one major life activity to be considered a disability. The EEOC will be issuing regulations to further define "substantially limits".

3. ADAAA expands the definition of disability to include many more major life activities and creates a new category of major bodily functions. The ADAAA describes a non-exhaustive list of "major life activities", including "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working." Major life activities now also include the operation of major bodily functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

4. The ADAAA prohibits consideration of mitigating circumstances when determining whether an impairment is a disability. Mitigating circumstances include medication, medical supplies, equipment, or appliances. Prescription lenses are excluded, but may be considered when assessing whether an individual is substantially limited in a major life activity.

5. Under the ADAAA an individual need not establish that he or she is substantially limited in a major life activity to be protected under the "regarded as" having an impairment provision of the ADA. The ADAAA also rejects the Supreme Court opinion that an employer must believe that an individual has a substantially limiting impairment in order to be liable under the "regarded as" section of the Act. However, the ADAAA makes clear that employers are not required to provide a reasonable accommodation to individuals regarded as disabled.

It is important that employers interact with applicants and employees to determine reasonable accommodations so the individual can perform the essential functions of the job.

EEOC Issues Questions and Answers and a Sample Notice for Employees Regarding Employer Wellness Programs

New rules published on May 17, 2016, under the Americans with Disabilities Act (ADA) require employers who offer wellness programs that collect employee health information to provide a notice to employees informing them what information will be collected, how it will be used, who will receive it, and what will be done to keep it confidential. Wellness programs often gather health information through voluntary health risk assessments (HRAs) or voluntary biometric screenings that include medical examinations (such as tests to detect high blood pressure, high cholesterol, or diabetes). The EEOC has published a sample notice to help employers comply with the ADA. The following are some questions and answers about the notice requirement and use of the sample notice.  You can see the sample notice by clicking here.

1. If wellness program participants already get a notice under the Health Insurance Portability and Accountability Act (HIPAA), do they need to get a separate ADA notice?

Employers that already provide a notice that informs employees what information will be collected, who will receive it, how it will be used, and how it will be kept confidential, may not have to provide a separate notice under the ADA. However, if an existing notice does not provide all of this information, or if it is not easily understood by employees, then employers must provide a separate ADA notice that sets forth this information in a manner that is reasonably likely to be understood by employees.

2. Who must provide the notice?

An employer may have its wellness program provider give the notice, but the employer is still responsible for ensuring that employees receive it.

3. Does the notice have to include the exact words in the EEOC sample notice?

No. As long as the notice tells employees, in language they can understand, what information will be collected, how it will be used, who will receive it, and how it will be kept confidential, the notice is sufficient. Employers do not have to use the precise wording in the EEOC sample notice. The EEOC notice is written in a way that enables employers to tailor their notices to the specific features of their wellness programs.

4. When should employees get the notice?

The requirement to provide the notice takes effect as of the first day of the plan year that begins on or after January 1, 2017 for the health plan an employer uses to calculate any incentives it offers as part of the wellness program. For more information about which plan to use in calculating wellness program incentives, refer to EEOC's questions and answers on the ADA rule and the Genetic Information Nondiscrimination Act (GINA) rule. Once the notice requirement becomes effective, the EEOC's rule does not require that employees get the notice at a particular time (e.g., within 10 days prior to collecting health information). But they must receive it before providing any health information, and with enough time to decide whether to participate in the program. Waiting until after an employee has completed an HRA or medical examination to provide the notice is illegal.

5. Is an employee's signed authorization required?

No. The ADA rule only requires a notice, not signed authorization, though other laws, like HIPAA, may require authorization. Title II of the Genetic Information Nondiscrimination Act (GINA) requires prior, written, knowing, and voluntary authorization when a wellness program collects genetic information, including family medical history. (See Q&A 7 below.)

6. In what format should the notice be provided?

The notice can be given in any format that will be effective in reaching employees being offered an opportunity to participate in the wellness program. For example, it may be provided in hard copy or as part of an email sent to all employees with a subject line that clearly identifies what information is being communicated (e.g., "Notice Concerning Employee Wellness Program"). Avoid providing the notice along with a lot of information unrelated to the wellness program as this may cause employees to ignore or misunderstand the contents of the notice. If an employee files a charge with EEOC and claims that he or she was unaware of a particular medical examination conducted as part of a wellness program, EEOC will examine the contents of the notice and all of the surrounding circumstances to determine whether the employee understood what information was being collected, how it was being used, who would receive it, and how it would be kept confidential.

Employees with disabilities may need to have the notice made available in an alternative format. For example, if you distribute the notice in hard copy, you may need to provide a large print version to employees with vision impairments, or may have to read the notice to a blind employee or an employee with a learning disability. A deaf employee may want a sign language interpreter to communicate information in the notice, whether the notice is in hard copy or available electronically. Notices distributed electronically should be formatted so that employees who use screen reading programs can read them.

7. What notice must employers provide for spouses participating in an employer's wellness program?

As was the case prior to the issuance of the rules in 2016, GINA requires that an employer that offers health or genetic services and requests current or past health status information of an employee's spouse obtain prior, knowing, written, and voluntary authorization from the spouse before the spouse completes a health risk assessment. Like the ADA notice, the GINA authorization has to be written so that it is reasonably likely to be understood by the person providing the information. It also has to describe the genetic information being obtained, how it will be used, and any restrictions on its disclosure.