Audit, Compliance and Risk Blog

Employment Law: Identifying and Accommodating Disabled Employees

Posted by Jon Elliott on Thu, May 30, 2013 1990, the Americans with Disabilities Act (ADA) was enacted to protect the employment rights and opportunities of people with disabilities, and ensure their access to public services and accommodation. In September 2008, the ADA Amendments Act of 2008 repudiated several U.S. Supreme Court decisions interpreting ADA narrowly, and provided additional clarifications intended to ensure the broad availability of ADA’s protections. The U.S. Equal Employment Opportunities Commission (EEOC) develops and applies employer standards, facilitates lawsuits by aggrieved employees, and can enforce ADA directly by filing its own lawsuits.

Which Employers Are Subject to ADA?

ADA covers an employer that is “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.” State and local government agencies are also covered, as are Congress and the Office of the President (most federal agencies are instead subject to the Rehabilitation Act).

What Does ADA Consider a Disability?

ADA defines a disability as any of the following:

  • A physical or mental impairment that substantially limits one or more of that person’s major life activities. 

  • A record of such an impairment.

  • “Being regarded as having such an impairment” by the employer, even if the individual does not actually have a qualifying impairment.

EEOC regulations define a physical or mental impairment as:

“(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as an intellectual disorder (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.”

However, traits and behaviors are not, in themselves, mental impairments. For example, the EEOC Guidance on Psychiatric Disabilities states that stress, irritability, chronic lateness, and poor judgment are not impairments although they might be linked to such impairments.

These regulations also define major life activities as:

(A) In General … major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
(B) Major Bodily Functions … major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

You should note, however, that questions about whether an impairment infringes on a “major life activity” still drive a significant number of court cases—and not always to consistent determinations.

The impairment/disability need not necessarily be readily apparent, since they may qualify as disabilities when active, qualify as a history of disability if cured or in remission, or managed by medication, and mean that a person whose employer suspects the condition would be “regarded as” disabled. For example, the Supreme Court has ruled that Human Immunodeficiency Virus (HIV) infection can constitute a disability for purposes of ADA even before any symptoms appear. In May 2013 EEOC reaffirmed guidance that other non-obvious conditions are covered, including cancer, diabetes, epilepsy, and intellectual disabilities.

ADA does not protect people whose impairment is caused by current lifestyle decisions, even if they may produce disabilities and/or discrimination. For example, ADA provides that any inability to perform work tasks because of someone’s current use of illegal drugs is not a disability. However, discrimination against someone disabled because of a past practice (e.g., a former drug user) probably violates ADA.

What Are Employer Responsibilities?

ADA prohibits an employer from discriminating against a “qualified person with a disability.” This responsibility creates a two-stage hiring process:

  • First, the potential employer determines if the applicant is qualified for a job. An employer may not ask a potential employee disability-related questions at this stage, although these issues may arise if the employee requires accommodation in order to participate in the application process (such as wheelchair access to interview locations, or Braille copies or a reader for application materials).

  • Second, the employer then determines if that qualified applicant is a “qualified individual with a disability.” A person meets this standard if he or she can perform the job’s “essential functions.” Essential functions are those responsibilities that the employee must be able to perform without the assistance of another employee, or with the assistance of a “reasonable accommodation” (such as a listening device or a special chair).

You can determine essential functions in advance. They usually are limited to the purpose of the job, although in smaller workforces employees may be expected to perform functions that typically would be distributed to other employees in a larger workforce.

You should not determine reasonable accommodations in advance, since an employer must start by assessing what accommodations are necessary to allow an individual applicant/employee to do his or her job, and then assessing whether those accommodations are “reasonable” – or, which accommodations from a possible menu are reasonable. EEOC identifies categories of reasonable accommodation, including:

  • Modifying existing facilities, including changes to allow access by employees with physical disabilities, and adding soundproofing or barriers to reduce distracting noise for employees with psychiatric disabilities.

  • Restructuring jobs.

  • Allowing part-time or modified work schedules. 

  • Acquiring or modifying equipment.

  • Changing tests, training materials, or policies.

  • Adjusting supervisory methods to provide more guidance and feedback.

  • Providing a “job coach” to assist the employee.

  • Providing qualified readers or interpreters.

  • Reassigning the employee to a vacant position.

Implementation Checklist

Has the organization established a system of job descriptions?

  • If yes, do they clearly identify and differentiate essential job functions and other job functions?

  • If yes, do they include reference to employer policies and procedures (including workplace violence prevention)?

Has the organization established pre-employment screening procedures that avoid asking potential employees about disabilities until after a hiring decision has been made?

Does the organization have a formal policy affirming that reasonable accommodations will be made for qualified employees with disabilities?

  • If yes, does the policy provide for employee-specific evaluations and accommodations?

Where Do I Go For More Information?

EEOC provides a Disability Discrimination site within its website

The U.S. Department of Labor provides extensive information on its Job Accommodation Network (JAN) website 

About the Author Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products,including Workplace Violence Prevention: A Practical Guide to Security on the Job and Directors' and Officers' Liability.

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at:

Tags: Corporate Governance, Business & Legal, Employer Best Practices, Employee Rights, EEOC, NLRB, Disability benefits