Americans with Disabilities Act (ADA)

What is the Americans with Disabilities Act (ADA)?

The ADA prevents discrimination against disabled individuals. Title I applies to the workplace. The ADA became law in 1990 and was amended to expand the definition of disability in 2008.

Who enforces the ADA?

The U.S. Equal Employment Opportunity Commission (www.eeoc.gov) enforces Title I, which prohibits discrimination and retaliation in employment.

Does the ADA apply to my employer?

Yes, unless your employer has 14 or less employees. Check the poster on the bulletin board.

Is there an Arizona equivalent of the ADA?

Yes, the Arizona Civil Rights Act prohibits discrimination against the disabled in the workplace for employers of 15 or more.

Who is protected by the ADA?

Three categories of employees and job applicants:

– Qualified Disabled Individuals;

– Employees associated with a disabled person; and

– All employees and job applicants by:

a) Severely limiting pre-employment medical examinations and inquiries to post-offer situations that are justified by business necessity or are job-related.

b) Severely limiting medical examinations and inquiries for current employees.

c) Imposing confidentiality on all medical information. NOTE: This is not HIPAA.

d) Uncorrected vision is not a disability unless there are complications.

Who is a Qualified Disabled Individual?

An employee or job applicant who is:

– Qualified to perform the work; and

– Disabled; and

– Able to perform the essential functions of the job with or without reasonable accommodation.

How do I determine whether I am qualified to do the work?

Ask Human Resources for the written Job Description for your position. In addition to the Knowledge, Skills, and Abilities, the document should specify the physical and mental requirements of the job.

Who is disabled?

Employees or job applicants who:

– Have a physical or mental impairment that substantially limits one or more major life activities (example: diabetic); or

– Have a record of having such an impairment (example: cancer survivor); or

– Are regarded as having such an impairment (for example, an employee with occasional depression).

NOTE: The ADA Amendments Act broadened the definitions of “substantial limits” and “major life activity.”

Is alcoholism a disability?

Yes. However, the law restricts what kinds of accommodations are reasonable and what behavior is acceptable.

What about drug addicts?

They are not disabled if currently using. If they have successfully gone through rehabilitation, they are disabled.

What employer behavior is prohibited by the ADA?

Four categories:

– Discrimination (recruitment, pay, hiring, firing, promotion, job assignments, training, leave, benefits).

– Retaliation (for complaining internally or to the EEOC).

– Harassment.

– Certain medical examinations and inquiries.

What are the essential functions of the job?

The EEOC and federal courts defer to the employer’s Job Description. This document describes important elements of the job, intellectual and physical requirements, and hours and place of work.

What are reasonable accommodations?

A: There are three categories:
– Job modification
– a) Most accommodations cost nothing!
– b) Superb website at https://askjan.org has many lists of workplace accommodations sorted by type of disability.
– c) Example: Dimming the lights for an employee with migraine headaches.
– Leave from work
– a) Earned Paid Sick Time (Arizona’s sick leave) can be used.
– b) Workers’ Compensation leave can be used.
– c) Family Medical Leave Act (FMLA) leave can be used.
– d) Short and Long-Term Disability can be used.
– e) A personal job-protected unpaid leave of absence can be used.
– Reassignment to another position
– a) This is a last resort.
– b) Temporary light duty cannot be limited to injured workers.
– c) There is no requirement for an employer to create a job.

Who determines what is “reasonable?”
A: The EEOC and the federal courts usually defer to the employer, taking into account the employer’s size and revenues. A six-month leave of absence would be unreasonable for Joe’s Pizza, with 20 employees, as opposed to General Motors.

How do I request a reasonable accommodation?
A: Here are the steps:
– Ask for the written job description.
– Review askjan.org for ideas.
– Take askjan.org ideas and job description to your doctor.
– Tell the doctor that you need specific accommodations spelled out in writing.
– Pay the doctor, if required, for any completion of employer forms or a narrative report.
– Take the doctor’s report and your written request to Human Resources.
– Only request accommodations supported by askjan.org and your doctor.

Are there limits to accommodation?
A: Yes – they only need to be reasonable. They also must be effective in helping the employee to perform the job. They cannot create an undue hardship on the employer or a direct threat of severe harm to others. Also, employees and job applicants who associate with a disabled person are NOT entitled to any reasonable accommodation.

I asked my boss for an accommodation. How can I be sure she won’t tell everyone on my team?
A: Your boss must keep your medical information and even the fact that you need the accommodation confidential. Human Resources must keep your medical information in a separate file.

How do I deal with nosy co-workers?
A: Your boss is going to have the same problem. Here’s what you say, “If you told me something in confidence, you would trust that I would not tell everyone about your situation. Well, my situation is confidential. I would not divulge your secrets, and I trust that you will respect mine.” Your boss can use this same approach.

I believe I have been discriminated against because I’m disabled. What do I do?
A: First, check out your employer’s internal grievance or discrimination processes. Some employers make you sign an arbitration agreement that covers any ADA complaints. If you cannot get any relief from Human Resources, and there is no arbitration agreement, you have up to 300 days to file a charge of discrimination with the EEOC. You can do this in person or online. Please understand that there are many people “in line” ahead of you at EEOC.

What does the EEOC do with my charge?
A: Here’s the process:
– The EEOC will ask if you are interested in mediation. This is a worthwhile program that permits you and the employer, at no charge, to sit down with an impartial mediator to see whether you can resolve the issues identified in the charge. Most EEOC mediations result in resolution and occur within a year of charge filing.
– If you or the employer refuse mediation, the EEOC will investigate your charge. This may take several years.
– If the EEOC does not want to take your case into federal court, it will issue you a Right to Sue letter. You then have 90 days to file your complaint in federal court. If you have a “For Cause” determination from the EEOC, this means the EEOC believes you have a viable case. Attorneys are much easier to find with the For Cause determination. If you let the 90 days go by, your charge is dead.
– If the EEOC wants to take your case, then it becomes the plaintiff in the federal court litigation.
– Perhaps your attorney does not want to wait for the EEOC’s investigation to conclude, and your attorney may request a Right to Sue letter 60 or more days after your charge was filed.Bottom Line: You must exhaust administrative remedies (going through the EEOC) before you can sue your employer under the ADA.

What can I get if I win my ADA case?
A: It depends upon what happened to you.
– If you were terminated, you could receive backpay, front pay, reinstatement, and attorney fees. You can also receive an amount of compensatory and punitive damages, capped based upon the size of your employer. Punitive damages are not available to public employees. Remember, punitive damages are hard to prove.
– If you were not hired, you could receive reinstatement, back pay, front pay, attorney fees, and compensatory and punitive damages.
– If you were denied a reasonable accommodation, you could receive the accommodation, attorney fees, and potentially compensatory and punitive damages.
– If you were harassed, you could potentially receive compensatory and punitive damages.

Where can I find more information about the ADA?
A: On the Internet at www.ada.gov and www.eeoc.gov/eeoc-disability-related-resources.

FAMILY MEDICAL LEAVE ACT (U.S. Law)

What is the Family Medical Leave Act (FMLA)?
A: Celebrating its 30th anniversary in 2023, the FMLA provides job-protected unpaid leave to eligible employees who have an addition to the family, are caring for themselves or family members, or have certain activities and responsibilities due to their family member being in the military.

Is my employer covered by the FMLA?
A: All public employers and private employers with 50 or more employees are covered by the FMLA. Check the poster on the bulletin board.

Am I covered by the FMLA?
A: That depends on a number of factors:
– Your employer must employ at least 50 employees within 75 miles of where you work; and
– You must have worked for the employer for at least 12 months, and
– You must have worked at least 1250 hours for your employer over the 12 months before your leave would begin, and
– Your leave must fit within the family, medical, or military family categories.

What are the qualifying reasons for FMLA leave?
A: Here are the categories:
– Birth of a child, and to care for a newborn child or placement of a child for adoption or foster care OR
– To take medical leave when the employee is unable to work because of a serious health condition that makes the employee unable to perform the functions of the job OR
– When an employee is “needed” to care for an immediate family member (spouse, parent, or child) [Note: Different family definition from Arizona Earned Paid Sick Time.] OR
– Because of any “qualifying exigency” arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on active duty or has been notified of an impending call to active duty in the Armed Forces OR
– When an employee is needed to care for a Covered Servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or “next of kin” of the service member.

What are the benefits of FMLA?
A: They are:
– Job-protected unpaid leave for up to 12 workweeks per 12-month period AND
– Full job restoration AND
– Continuation of group health benefits during the leave AND
– Protection from retaliation.

What is the 12-month period?
A: The employer can use any of the following methods to determine the 12-month period for the leave:
– Calendar year OR
– Any fixed 12-month leave year OR
– The 12-month period measured forward from the date of an employee’s first FLMA leave begins OR
– A rolling 12-month period measured backward from the date an employee uses any FMLA leave.
If your employer fails to select one of these options, the option that provides you with the most beneficial outcome is used.

Can FMLA extend beyond 12 work weeks?
A: Not ordinarily. Only when the care of a covered servicemember is involved, here are the military leave entitlements:
– Any qualifying exigency arising from an impending call or order to active duty – 12 work weeks during any 12-month period.
– Covered Servicemember Family Leave – eligible employee is entitled to a total of 26 weeks during a single 12-month period.
– Spouses employed by the same employer are limited to a combined total of 26 workweeks of leave to care for a spouse, son, daughter, or parent who is a Covered Servicemember with a serious injury or illness.
– An eligible employee is entitled to a combined total of military and non-military related leave of 26 workweeks of leave for any FMLA qualifying reason during a single 12-month period.SPECIAL NOTE: If you are on FMLA due to a serious health condition and have exhausted FMLA, your employer may be required to grant you a leave of absence under the ADA as a reasonable accommodation.

Can I get paid leave?
A: You can substitute paid leave – and many employers require you to do so – during FMLA leave, such as EPST, workers’ compensation benefits, Short or Long Term Disability benefits, PTO, or vacation.

Do I have to take full days off?
A: No, FMLA provides for intermittent leave (taken in hours) for both serious health conditions and certain military “exigencies.” You can only receive intermittent FMLA for the birth or placement of a healthy child if your employer agrees.

What is a Serious Health Condition?
A: Serious Health Condition means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
– Incapacity means the inability to work, attend school, or perform regular daily activities due to a serious health condition, treatment, or recovery.
– Treatment includes but is not limited to, examinations to determine if a serious health condition exists and evaluation of the condition (Does not include routine physical, eye, or dental exams).
– Continuing treatment (for example) includes a course of prescription medication or therapy. For example, taking over-the-counter medications, salves, bed rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider is not, by itself, sufficient to constitute a regimen of continuing treatment for FMLA purposes
– Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are not serious health conditions unless inpatient hospital care is required or complications develop. However, restorative dental or plastic surgery after injury or removal of cancerous growths are serious health conditions.

Before requesting FMLA, what should I know and do?
A: You need to know whether your employer or its third-party administrator – usually an insurance company – handles FMLA. Review the poster on the bulletin board and your Employee Handbook. Talk to Human Resources.

What kind of notice must I provide?
A: At least 30 days before FMLA leave is to begin if you can anticipate the need. As soon as practicable in the event of an emergency. Bottom line: Don’t wait.

Must I be specific?
A: Yes, you must provide sufficient information for your employer to reasonably determine whether FMLA may apply. Remember that if you don’t respond to your employer or its administrator, your FMLA protections and leave may be denied.

What do I need to do if I need time off due to my health issues?
A: For a serious health condition, your employer may require you to submit a Medical Certification from your physician – which is on a standard FMLA form. Your doctor may charge you extra to complete it. Be sure you give your Job Description to your doctor and that your doctor writes down specific limitations you have and when you will be able to return to work. Ensure that you give your doctor’s office permission to talk to your employer or its administrator if they have questions about your eligibility. You only have 15 days to provide this Medical Certification, so don’t wait!

What happens to my health insurance while I’m on FMLA?
A: Your employer keeps it in place, but if you normally pay a portion of the premiums, you have to keep paying them. If you exhaust paid leave, you must make arrangements to pay. Talk to Human Resources or your employer’s FMLA Administrator ahead of time to avoid surprises and disappointment.

My employer says I need a fitness for duty certificate from my doctor before I can return – what do I do?
A: Your employer can do this, BUT it must let you know even before you take FMLA and give you a job description with your official FMLA notice to give to your doctor.

I regularly work the day shift. I have been on FMLA and can return to work, but my boss says I am now on the night shift. Is this a violation of FMLA?
A: It may be. On return from FMLA, you are entitled to be returned to the same job position or an equivalent position with equivalent benefits, pay, and other terms and conditions of employment – even if you have been replaced or the job position has been restructured to accommodate your absence. Your employer has the burden to show that you would not otherwise have been on the day shift at the time of your reinstatement.

My boss mentioned my FMLA in my evaluation. Is this a violation of the FMLA?
A: It may be. Your employer cannot consider your use of FMLA leave as a negative factor in employment actions.

Who enforces the FMLA?
A: The U.S. Department of Labor Wage and Hour Division or you. You have a choice of either filing a complaint with the USDOL or suing your employer in federal court. The statute of limitations is two years, unless your employer willfully violated the year which extends the limitations period to three years.

What are the remedies?
A: Usually, the time off that you should have received. If terminated, reinstatement, back pay, and attorney fees are available. Don’t forget that you may have internal remedies at your employer.

Help! I need more information!
A: Go to www.dol.gov/agencies/whd/fmla and get your questions answered.