ADA 101

1.    What is the ADA?

The ADA requires a covered employer to make "reasonable accommodations" for a qualified disabled employee or applicant unless the employer can demonstrate that to do so would cause the employer "undue hardship."

2.    Who is protected?

A disabled employee or applicant for work with a covered employer is protected if she/he has a disability, and if such employee, with or without reasonable accommodations, can do the "essential functions" of the job.

3.    Which employers are covered?

A private-sector employer must comply with the ADA if it has at least 15 employees for each working day in each of 20 or more weeks in the current or preceding calendar year.

Local government employers are covered, but federal or state employers are not.

4.    How does the ADA define disability?

The Act defines disability most relevantly as a current physical or mental impairment that substantially limits one or more of an employee’s/applicant’s major life activities.

    (a) Almost any physical or mental disorder (with exceptions for substance abuse/dependence) may be a “physical or mental impairment,” but only some disorders may meet the “substantially limiting” test.

    (b) A “major life activity” must be “central to most people’s daily lives,” and includes caring for oneself, performing manual tasks, sitting, standing, walking, lifting, reaching, seeing, hearing, speaking, breathing, and learning.

    (c) “Substantially limiting” means considerably restricting, not totally precluding.

5.    What are “essential job functions” under the ADA?

A job function may be essential if the reason for the job is to perform that function, if there are only a limited number of employees available to whom the job might be rotated, or if the function is highly specialized and the employer hired the employee given his/her ability to perform that specific function.

The employer, in defending an ADA claim, has the burden of proving that a particular job function is essential, and therefore not changeable.

    (a) Attendance upon a certain shift, or upon a certain schedule, e.g., full-time, 3/4 time, may not necessarily be an essential function.

    (b)  The ability of an employee to rotate to different jobs among a cluster of jobs may not necessarily be an essential function.

    (c) An employer’s “light duty” work assignment program may create questions about which functions of such work assignments are essential, and about whether such activities might be reserved only for work-relatedly disabled employees.

6.    What is a “reasonable accommodation” an employer must make under the ADA?

The ADA describes reasonable accommodation examples as "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices...."

The disabled employee or applicant must put the employer on notice of her/his need for reasonable accommodation.

An accommodation is reasonable so long as it places no undue hardship, such as a significant expense, on the employer.

7.    How does an employee enforce the ADA?

In Michigan, the employee alleging an ADA violation must file a charge of disability with the Equal Employment Opportunity Commission (EEOC) (or with the Michigan Department of Civil Rights) within 300 days of the violation. After investigation, the EEOC may attempt conciliation, or may file its lawsuit in federal district court. Otherwise it may issue a "notice of right to sue" letter, and the employee by her/his own attorney must file suit in either state or federal court within 90 days of the letter’s date.

8.    What remedies might an employee get from an employer which violates the ADA?

A successful plaintiff-employee may receive back pay, job reinstatement, compensatory damages (for mental distress, for example), punitive damages, and attorneys’ fees.

9.    What is the relationship of the ADA to Michigan’s Persons with Disabilities Civil Rights Act?

Michigan’s anti-disability discrimination statute covers even the employer with only a single employee; defines disability similarly to the ADA; and outlines a specific formula approach to help determine whether an employer might reasonably accommodate an employee’s disability without undue hardship.

An employee may file a claim under Michigan’s law initially with the MDCR and then in circuit court, or he/she might proceed directly to circuit court. The remedies a successful plaintiff-employee might recover under Michigan’s law are somewhat different than the recoveries under ADA.

10.    What is the relationship of the ADA to the FMLA?

Many employers required to comply with the ADA are not covered under the FMLA. Some employers are required to comply with both statutes, but not all employees of such employers are covered under FMLA, because of FMLA special eligibility rules.

The ADA’s definition of "disability" is not the same as the definition of "serious health condition" under the FMLA, so an employee may have a medical condition qualifying her/him for medical leave under FMLA but not accommodation under ADA.