Non-compliance with ADA is Now Costlier! | DCR Workforce Blog

Non-compliance with ADA is Now Costlier!

ADA ComplianceThe Department of Justice has issued a ruling, raising the civil monetary penalties under the Civil Rights Division, including penalties for violating the Title III of the Americans with Disabilities Act (ADA) of 1990, by adjusting them for inflation. Now a first violation costs $75,000 (from an earlier $55,000) while the maximum stands at $150,000. The increased penalties became effective on April 28, 2014.

All about ADA and ADAAA

The Americans with Disabilities Act of 1990 – also known as the ADA – champions the cause of qualified individuals with disabilities, and protects them from discrimination. The ADA does not spare private employers, state and local governments, employment agencies and labor unions for irregularities towards an individual with disability – whether in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment.

The ADA Amendments Act (ADAAA) was passed in 2008 to supplement the ADA to clarify and increase the rights of disabled individuals. ADAAA simplifies and broadens the definition of disability and focuses on eliminating discrimination by expanding the scope of accommodation requirements under the ADA.

Definition of Disability:

The ADAAA defines an individual with a disability is one who:

  • Has a physical or mental impairment that substantially limits one or more major life activities;
  • Has a record of such impairment; or is regarded as having such impairment.

A qualified employee or applicant with a disability is one who can perform the essential functions of the job in question, with or without reasonable accommodation. The ADAAA requires that courts interpreting the ADA focus on whether the covered entity has discriminated, rather than whether the plaintiff has an impairment that fits within the technical definition of the term “disability.”

Reasonable Accommodation:

If an employee with an impairment meets the ADAAA definition of a disability, the worker is entitled to “reasonable accommodation. This means, in essence, a change that would remove a barrier that prevents the employee from attaining the same level of performance or enjoying the same work environment privileges as workers who do not have a disability.   Reasonable Accommodation under the ADAAA involves assigning the employee to a job which is modified to suit the person’s capabilities with disability. The employer cannot impose a limit on the number of accommodations made or the time they will be in place, even if there is deterioration in the employee’s capabilities over time. Reasonable accommodation under the ADA and ADAAA mandate that existing facilities used by employees are readily accessible to and usable by persons with disabilities. It requires job restructuring, modification of work schedules, reassignment to a vacant position, adjusting equipment or devices, modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

Employer’s Duty:

An employer is required to provide reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources and the nature and structure of its operation.

After May 24, 2011, ADAAA expanded an employer’s duty to make reasonable accommodations which enable both employees and job candidates to perform the essential functions of a job.

  • Employers need to make sure that job descriptions, postings and application processes define all aspects of a job clearly using language that cannot in any way be construed as being discriminatory. Descriptions of role requirements must indicate the business necessity for excluding candidates with impairments and disabilities.
  • Interviewers need to be trained to steer clear of health or disability-related questions.
  • All disciplinary and termination decisions should be independently reviewed to verify that the action is not being taken to discriminate against an individual with a disability..
  • Even under ADAAA employers need not create new jobs, displace one employee to accommodate another, promote a disabled employee, or eliminate the performance of essential functions. These actions are not considered to be “reasonable accommodations”.
  • ‘Light Duty’ may be assigned as a limited and voluntary concession made by the employer to facilitate an employee’s recuperation and should not be confused with reasonable accommodation.

Duties of the Staffing Industry:

Any staffing agency which employs 15 or more employees during a 20 week period is subject to the provisions of the ADA, which ascribes joint responsibilities to staffing firms and their clients for the way they deal with contingent workers.

A staffing agency cannot claim that its client compelled it to shorten or terminate a disabled worker’s assignment, while its client cannot claim that the responsibility for providing reasonable accommodation rests solely with the staffing agency as the employer of record. Both will face action for disability discrimination for violating the ADA.

Disabled candidates who meet the requirements of a position must be submitted for consideration, even if the individual will require reasonable accommodation if and when the assignment is offered. The disability cannot factor into the decision as to the individual’s qualifications.

As Martina Navratilova has said “Disability is a matter of perception. If you can do just one thingwell, you’re needed by someone.”   Even if there is disability, it may be reasonably accommodated in many roles to allow a person to contribute to the success of a company. Employers cannot forget this without paying the price.


Disclaimer:
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.