Human Resources Management

Revised: April 8, 2015

Americans with Disabilities Act (ADA)

The requirements of Americans with Disabilities Act applies to employers with 15 or more employees. 

LSUHSC-NO’s ADA Policy Statement

LSUHSC-NO is an equal opportunity employer and makes employment decisions on the basis of merit. We want to have the best available persons in every job. CM- 26 prohibits unlawful discrimination based on race, color, creed, sex, age, national origin, physical handicap, disability, medical condition or any other consideration made unlawful by federal, state, or local laws. All such discrimination is unlawful. To comply with applicable laws ensuring equal employment opportunities to qualified individuals with disabilities, LSUHSC-NO will make reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or an employee unless undue hardship would result. Any applicant or employee who requires an accommodation in order to perform the essential functions of the job should contact their supervisor or the Department of Human Resource Management Employee Relations Manager, (504) 568-3916 and request such an accommodation. The individual with the disability should specify what accommodation s/he needs to perform the job.

ADA Enforcement

EEOC (Equal Employment Opportunity Commission) is the enforcement agency for rights created by the Act. For Federal contractors, an agreement of understanding exists between the EEOC and OFCCP (Office of Federal Contract Compliance Programs). The Civil Rights Act of 1991 provides compensatory and punitive damages to people who have been discriminated against on the basis of their disability under the ADA.  Damages are limited to $300,000 for employers having more than 500 employees. In 2008, Congress passed the ADA Amendments Act (ADAAA) which expands coverage and protection in several ways: First, the act lists bodily functions, which the courts should now take into account when determining whether an individual has an impairment of a major life activity. Second, the Act additionally makes clear that individuals with even temporary disabilities may assert coverage if their disability is severe enough. Finally, the ADAAA states that the evaluation of whether an individual's impairment substantially limits a major life activity should be made without regard to mitigating measures (except for ordinary eyeglasses and contact lenses).

What Does the ADA Prohibit?

Title I of the ADA prohibits discrimination in employment against qualified individuals with disabilities and affects virtually every aspect of the employment relationship.  An employer may not deny an employment opportunity because an individual, with or without a disability, has a relationship or association with an individual who has a disability. 

Who is a Person with a Disability?

• A person who has a physical or mental impairment that Substantially Limits one or more Major Life Activities; or
• Has a record of such impairment; or
• Is regarded as having such an impairment

What are Major Life Activities?

Major life activities are functions such as caring for oneself, walking, speaking, breathing, performing manual tasks, seeing, hearing, learning, working, sitting, standing, lifting, reading.

What Constitutes “Substantially Limits”?

Under the ADA, “Substantially Limits” means a person is unable to perform or be significantly limited in the ability to perform an activity compared to an average person in the general population. Three factors to be considered are:

1. nature and severity;
2. duration or expected duration;
3. permanent, expected or long term impact.

Temporary, non-chronic impairments that do not last for a long time and that have little or no long-term impact usually are not disabilities.

What are Considered Physical and Mental Impairments under the ADA?

A physical impairment is any physiological disorder, condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.

A mental impairment is any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

What is NOT an Impairment under the ADA?

• Simple physical characteristics- - such as eye or hair color, left-handedness, or height or weight within a normal range.
• A physical condition that is not the result of a physiological disorder, such as pregnancy, or a predisposition to a certain disease.
• Personality traits such as poor judgment, quick temper or irresponsible behavior.
• Environmental, cultural, or economic disadvantages, such as lack of education or a prison record.

Determination of Impairment

A person’s impairment is determined without regard to any medication or assistive device that s/he may use. For example:

• A person who has epilepsy and uses medication to control seizures, or a person who walks with an artificial leg would be considered to have an impairment, even if the medicine or prosthesis reduces the impact of the impairment.
• “Stress” and “depression” are conditions that may or may not be considered impairments, depending on whether these conditions result from a documented physiological or mental disorder.
 
• A person diagnosed by a psychiatrist as having an identifiable stress disorder, would have an impairment that may be a disability.
• A person suffering from general “stress” because of job or personal life pressures would not be considered to have an impairment.
• A person who cannot read due to dyslexia is an individual with a disability because dyslexia, which is a learning disability, is an impairment.
 
• A person who cannot read because s/he dropped out of school is not an individual with a disability, because lack of education is not an impairment.

What Does it Mean to be a “Qualified Individual with a Disability” under the ADA?

A qualified individual with a disability is an individual with a disability who satisfies the position’s job-related skill, experience, and education requirements, with or without reasonable accommodation, and can perform the Essential Job Functions.

What are Essential Functions?

Essential functions are those tasks that are fundamental and not marginal to a job. The first consideration is whether employees in the position are actually required to perform the function. If a person holding a job does perform a function, the next consideration is whether removing that function would fundamentally change the job. The regulations list several reasons why a function could be considered essential:

• The position exists to perform that function.
• There are a limited number of other employees available to perform the function, or among whom the function can be distributed.
• A function is highly specialized, and the person in the position is hired for special expertise or ability to perform it.
• The regulation lists several types of evidence to be considered in determining whether a function is essential. The list includes:
• The employer’s judgment.
• A written job description prepared before advertising or interviewing applicants for a job.
• The amount of time spent performing the function.
• The consequences of not requiring a person in this job to perform a function.
• The terms of a collective bargaining agreement.
• Nature of the work operation and the employer’s organizational structure.
• Work experience of people who have performed a job in the past and work experience of people who currently perform a similar job.

Who is a Qualified Individual with a Disability under the ADA?

• Persons who have been rehabilitated; who are in a supervised drug rehabilitation program; or are erroneously regarded as using drugs.
• An alcoholic is a person with a disability under the ADA and may be entitled to consideration of accommodation if s/he is qualified to perform the essential functions of a job.
• However, an employer may discipline, discharge, or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that s/he is not “qualified”.

Qualified Individual with a Disability

Example:

If a person who has alcoholism often is late to work or is unable to perform the responsibilities of his/her job, an employer can take disciplinary action on the basis of the poor job performance and conduct. However, an employer may not discipline an alcoholic employee more severely than it does other employees for the same performance or conduct. 

Who is NOT a Qualified Individual with a Disability?

The following are excluded from the definition of “qualified individual with a disability”:

• Currently using illegal drugs
• Compulsive gambling, kleptomania, and pyromania
• Psychoactive disorders resulting from current illegal use of drugs

Employer’s Obligation

The employer has an obligation to consider applicants and make decisions without regard to an individual’s disability, or the individual’s need for Reasonable Accommodation. There is no obligation to prefer applicants with disabilities over other applicants.

What is a “Reasonable Accommodation”?

Reasonable Accommodation is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity. Accommodations may include:

• Making facilities readily accessible to and usable by an individual with a disability.
• Restructuring a job by job functions.
• Part-time or modified work schedules.
• Obtaining or modifying equipment or devices.
• Altering when or how an essential job function is performed.
• Modifying examination, training materials or policies.
• Providing qualified readers and interpreters.
• Reassignment to a vacant position.
• Permitting use of accrued paid leave or unpaid leave for necessary treatment.
• Providing reserved parking for a person with a mobility impairment.
• Allowing an employee to provide equipment or devices that an employer is not required to provide.

Employer’s Obligations: Reasonable Accommodations

An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would impose an undue hardship on the business. 

• The obligation to provide a reasonable accommodation applies to all aspects of employment. This duty is ongoing and may arise any time that a person’s disability or job changes. 
• An employer does not have to make an accommodation for an individual who is not otherwise qualified for a position. 
• Generally, it is the obligation of an individual with a disability to request a reasonable accommodation. 
• A qualified individual with a disability has the right to refuse an accommodation. However, if the individual cannot perform the essential functions of the job without the accommodation, s/he may not be qualified for the job.
• If the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of providing the accommodation or paying that portion of the cost that would constitute an undue hardship.
• An employer is not required to make a reasonable accommodation if it would impose an undue hardship on the operation of the business.
• An undue hardship is an action that requires “significant difficulty or expense” in relation to the size of the employer, the resources available, and the nature of the operation.
• The concept of undue hardship includes any action that is: unduly costly, extensive, substantial, disruptive, or that would fundamentally alter the nature or operation of the business.
 
• In general, a larger employer would be expected to make accommodations requiring greater effort or expense that would be required of a smaller employer.

Employer’s Obligations: Applications and Job Interviews

An Employer MAY ask:

• questions about an applicant’s ability to perform specific job functions.
• all applicants to describe or demonstrate how they will perform a job, with or without an accommodation.
• If an individual has a known disability that might interfere with or prevent performance of job functions, s/he may be asked to describe or demonstrate how these functions will be performed, with or without an accommodation, even if other applicants are not asked to do so; however
• If a known disability would not interfere with performance of job functions, an individual may only be required to describe or demonstrate how s/he will perform a job if this is required of all applicants for the position.

An Employer May NOT:

• make an inquiry about a disability
• ask the number of days an applicant was absent from work because of illness or whether an applicant will need to request leave for medical treatment or for other reasons related to a disability.

The interviewer may provide information on the employer’s regular work hours; leave policies and any special attendance requirements (provided that the requirements actually are applied to employees in a particular job).

Information about previous work attendance records may be obtained on the application form, in the interview or in reference checks, but the questions should not refer to illness or disability.

If an applicant has had a poor attendance record on a previous job, s/he may wish to provide an explanation that includes information related to a disability, but the employer should not ask whether a poor attendance record was due to illness. For example, an applicant might wish to voluntarily disclose that the previous absence record was due to surgery for a medical condition that is now corrected, treatment for cancer that is now in remission, or to adjust medication for epilepsy, but that s/he is now fully able to meet all job requirements.

Employer’s Obligations: Confidentiality

• All medical information must be maintained in a medical file in a separate, locked cabinet, apart from the location of personnel files, designating a specific person or persons to have access to the file.
• All medical-related information must be kept confidential, with the following exceptions:
• Supervisors and managers may be informed about necessary restrictions on the work or duties of any employee and necessary accommodations.
• Safety personnel may be informed, when appropriate, if the disability might require emergency treatment or if any specific procedures are needed in the case of fire or other evacuations.
• Government officials investigating compliance with the ADA and other federal and state laws prohibiting discrimination on the basis of disability or handicap should be provided relevant information on request.
• Relevant information may be provided to state workers’ compensation offices or “second injury” funds, in accordance with state workers’ compensation laws.
• Relevant information may be provided to insurance companies where the company requires a medical examination to provide health or life insurance for employees.

Evaluations, Discipline, and Discharge

• An employer can hold employees with disabilities to the same standards of production/performance as other similarly situated employees without disabilities for performing essential job functions.
• A disabled employee who needs an accommodation in order to perform a job function should not be evaluated on his/her ability to perform the function without the accommodation, and should not be downgraded because such an accommodation is needed to perform the function.
• An employer should not give employees with disabilities “special treatment”. They should not be evaluated on a lower standard or disciplined less severely than any other employee. This is not equal employment opportunity.
• If any employee with a disability is not performing well, an employer may require medical and other professional inquiries that are job-related and consistent with business necessity to discover whether any reasonable accommodation or additional accommodation is needed.
• An employer may not discipline or terminate an employee with a disability if the employer has refused to provide a requested reasonable accommodation that did not constitute an undue hardship, and the reason for the unsatisfactory performance was the lack of accommodation.

Leave

• An employer may establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave.
• An employer may be required to make adjustments in leave policy as a reasonable accommodation. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave. 
• An employer is not required to give leave as a reasonable accommodation to an employee who has a relationship with an individual with a disability to enable the employee to care for that individual. 

Guidelines for Sensitive Use of Language

• Do not refer to a disability unless it is relevant.
• Do not sensationalize a disability by saying “a victim of,” “afflicted with,” etc. Instead say “person who has multiple sclerosis” or “people who have had polio.”
• Do not assume that a person with a speech impediment or mobility impairment has some form of mental limitation.
• Avoid emotional descriptions. Say “uses a wheelchair” rather than “confined to a wheelchair” or “wheelchair bound,” and “walks with crutches” rather than “is crippled.”
• Avoid labeling and grouping people, as in “the disabled,” “the deaf,” “a paraplegic.”  Instead say “people with disabilities,” “people who are deaf,” “a man who has paraplegia.”  (Note that the words “disabled,” “blind,” and “deaf” are adjectives, not nouns!)
• Avoid using the word “special” in regard to a disability, as in “special entrance” or “special transportation.”  Instead say “accessible entrance” and “lift-equipped buses.”  The word “special” serves to segregate rather than integrate people with disabilities.
• Avoid putting disability issues into a medical context. The overwhelming majority of people with disabilities are not sick. Words like “patient,” “case,” and “invalid” should not be used. Most current disability issues concern civil rights, education, or accessibility.
• Avoid using an over familiar tone in referring to people with disabilities. A disabled person deserves the same courtesy of address and reference as a non-disabled person. (Disabled people, for example, are often “first names,” whereas non-disabled people in similar contexts are not.)
• If you wish to speak to a person with a disability, address him or her directly, rather than addressing someone who is with that person.
• Remember that people with mental retardation often are articulate. Others may understand more than they are able to communicate.

Discrimination Complaints

If you believe you have been subjected to any form of unlawful discrimination, provide a written complaint to the Department of Human Resource Management. If the complaint relates to personnel of the Department of Human Resource Management, submit the complaint to the Vice Chancellor for Administration.

Your complaint should be specific and include the names of individuals involved and the names of witnesses. LSUHSC-NO will immediately undertake an effective, thorough, and objective investigation and attempt to resolve the situation. If LSUHSC-NO determines that unlawful discrimination has occurred, effective remedial action will be taken to deter any future discrimination.

Whatever action is taken will be made known to you and LSUHSC-NO will take appropriate action to remedy any loss to you as a result of the discrimination. LSUHSC-NO will not retaliate against you for filing a complaint and will not willingly permit retaliation by management, employees or coworkers.

Things to Remember

• Review accessibility and safety features.
• Update job descriptions – consider essential functions of positions – both Mental and Physical!
• Review screening procedures – Interview Questions.
• Interview questions should be confined to whether the person can perform the essential functions of the position.
• Avoid any pre-employment questions about applicant’s physical and mental condition. These questions can be asked and a physical examination can be given only after a conditional employment offer is extended.
• If in doubt, regarding any aspects of the employment process, call Human Resource Management for guidance.

Getting Help

If you have any questions or complaints, please contact Human Resources Employee Relations by:

• Phone: (504) 568-3916
• Website