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Small businesses are an ever-increasing source of jobs, many of which can be filled by individuals with disabilities who are able and want to work. The approximately 25 million small businesses in the nation represent 99.7 percent of all employers, employ more than 50 percent of the private work force, and generate more than half of the nation's gross domestic product.(1) Small businesses also provide 67 percent of all first jobs. Unfortunately, the unemployment rate of individuals with disabilities remains high. By some estimates, more than 70% of individuals with severe disabilities are not working, even though many of them are willing and able to do so. President Bush's New Freedom Initiative seeks to partner with small businesses to increase the percentage of individuals with disabilities in the workplace.
While the Americans with Disabilities Act (ADA) applies to all businesses with 15 or more employees, this handbook is intended primarily for businesses with 15 to 100 employees and smaller businesses expecting to expand to have at least 15 employees in the near future. It will provide you with an easy-to-read, overview of the basic employment provisions of the ADA as they relate to employees and job applicants.
The ADA is a federal civil rights law designed to prevent discrimination and enable individuals with disabilities to participate fully in all aspects of society.
Practice tip: The Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA. The EEOC is headquartered in Washington, DC and has offices throughout the United States, including Puerto Rico. If you have any questions concerning the EEOC or the ADA, please
The ADA applies to a person who has a physical or mental impairment that substantially limits one or more major life activities (like sitting, standing, or sleeping).
The ADA also protects a person with a record of a substantially limiting impairment.
Example: A person with a history of cancer that is now in remission may be covered.
And the ADA protects a person who is regarded (or treated by an employer) as if s/he has a substantially limiting impairment.
Example: An employer may not deny a job to someone who has a history of cancer because of a fear that the condition will recur and cause the employee to miss a lot of work.
The ADA only protects a person who is qualified for the job s/he has or wants.
Practice tip: Employers do not have to hire someone with a disability over a more qualified person without a disability. The goal of the ADA is to provide equal access and opportunities to individuals with disabilities, not to give them an unfair advantage.
Employers covered by the ADA have to make sure that people with disabilities:
Practice tip: Harassing someone because of a disability is just as serious as harassing someone because of race, sex, religion, or national origin. If an employee complains to you that s/he is being harassed because of a disability, respond to the complaint right away by conducting an appropriate investigation and, if necessary, taking action to correct the situation.
As discussed in the sections that follow, the ADA also limits the kinds of medical information that you can get from a job applicant or employee and requires you to provide reasonable accommodations to the known limitations of qualified individuals with disabilities.(2)
Practice tip: Focus application and interview questions on non-medical job qualifications. An employer may ask a wide range of questions designed to determine an applicant's qualifications for a job.
Where it seems likely that an applicant has a disability that will require a reasonable accommodation, you may ask whether s/he will need one. This is an exception to the usual rule that questions regarding disability and reasonable accommodation should come after making a conditional job offer.
Example: During a job interview, you may ask a blind applicant interviewing for a position that requires working with a computer whether s/he will need a reasonable accommodation, such as special software that will read information on the screen.
Practice tip: You may withdraw an offer from an applicant with a disability only if it becomes clear that s/he cannot do the essential functions of the job or would pose a direct threat (i.e., a significant risk of substantial harm) to the health or safety of him/herself or others. Be sure to consider whether any reasonable accommodation(s) would enable the individual to perform the job's essential functions and/or would reduce any safety risk the individual might pose.
Once a person with a disability has started working, actual performance, and not the employee's disability, is the best indication of the employee's ability to do the job.
Basic rule: The ADA strictly limits the circumstances under which you may ask questions about disability or require medical examinations of employees. Such questions and exams are only permitted where you have a reasonable belief, based on objective evidence, that a particular employee will be unable to perform essential job functions or will pose a direct threat because of a medical condition.
Sometimes you may have observed the employee's job performance or you may have received reports from others who have seen the employee's behavior. These observations or reports may give you a reasonable belief that the employee's ability to perform essential job functions is impaired by a medical condition or that the employee poses a direct threat because of a medical condition.
Practice tip: If an employee with a disability is having trouble performing essential job functions, or doing so safely, do not immediately assume that the disability is the reason. Poor job performance is often unrelated to a medical condition and, when this is the case, it should be handled in accordance with your existing policies concerning performance (e.g., informal discussions with the employee, verbal or written warnings, or termination where necessary). On the other hand, if you have information that reasonably causes you to conclude that the problem is related to the employee's disability, then medical questions, and perhaps even a medical examination, may be appropriate.
Example: A normally reliable employee who is making frequent mistakes tells you that the medication she has started taking for her lupus makes her lethargic and unable to concentrate. Under these circumstances, you may ask her some questions relating to her medical condition, such as how long the medication can be expected to affect job performance.
Basic rule: With limited exceptions, you must keep confidential any medical information you learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional.
Example: An employee's request for a reasonable accommodation would be considered medical information subject to the ADA's confidentiality requirements.
Practice tip: Do not place medical information in regular personnel files. Rather, keep medical information in a separate medical file that is accessible only to designated officials. Medical information stored electronically must be similarly protected (e.g., by storing it on a separate database).
The ADA recognizes that employers may sometimes have to disclose medical information about applicants or employees. Therefore, the law contains certain exceptions to the general rule requiring confidentiality. Information that is otherwise confidential under the ADA may be disclosed:
Practice tip: If providing a particular accommodation would result in undue hardship, consider whether another accommodation exists that would not.
Practice tip: To offset the cost of accommodations, you may be able to take advantage of tax credits, such as the Small Business Tax Credit (see Appendix A) and other sources, such as vocational rehabilitation funding.
Regardless of cost, you do not need to provide an accommodation that would pose significant difficulty in terms of the operation of your business.
Example: A store clerk with a disability asks to work part-time as a reasonable accommodation, which would leave part of one shift staffed by one clerk instead of two. This arrangement poses an undue hardship if it causes untimely customer service.
Example: An employee with a disability asks to change her scheduled arrival time from 9:00 a.m. to 10:00 a.m. to attend physical therapy appointments and to stay an hour later. If this accommodation would not affect her ability to complete work in a timely manner or disrupt service to clients or the performance of other workers, it does not pose an undue hardship.
In addition to actions that would result in undue hardship, you do not have to do any of the following:
Example: A grocery store bagger develops a disability that makes her unable to lift any item weighing more than five pounds. The store does not have to grant an accommodation removing its fifteen-pound lifting requirement if doing so would remove the main job duty of placing items into bags and handing filled bags to customers or placing them in grocery carts.
Example: A hotel that requires its housekeepers to clean 16 rooms per day does not have to lower this standard for an employee with a disability.
Example: You do not have to tolerate violence, threats of violence, theft, or destruction of property, even if the employee claims that a disability caused the misconduct.
Example: A doctor's note indicating that an employee can work "with restrictions" is a request for a reasonable accommodation.
Practice tip: Even though you do not have to initiate discussions about the need for a reasonable accommodation, if you believe that a medical condition is causing a performance or conduct problem, you certainly may ask the employee how you can help to solve the problem and even may ask if the employee needs a reasonable accommodation.
Practice tip: You also may make an accommodation without requesting any documentation at all. You are free to rely instead on an individual's own description of his or her limitations and needs.
Consider putting procedures for providing reasonable accommodations in writing (though this may not be necessary, particularly if you are a very small employer and have one person designated to receive and process accommodation requests).
As an alternative to written procedures, you might include a short statement in an employee handbook indicating that you will provide reasonable accommodations for qualified individuals with disabilities, along with the name and telephone number of the person designated to handle requests.
You also may want to indicate on written job applications that you will provide reasonable accommodations for the application process and during employment.
And bear in mind, whether you have written procedures or not:
Basic rule: There are many accommodations that enable individuals with disabilities to apply for jobs, be productive workers, and enjoy equal employment opportunities. In general, though, they can be grouped into the following categories.
Practice tip: There are tax incentives available to many small businesses for providing some of the reasonable accommodations described below. (See Appendix A.)
Example: A medical clinic could purchase amplified stethoscopes for use by hearing-impaired nurses, physicians, and other members of the health care staff.
Example: A small retail store could lower a paper cup dispenser near the water fountain and reconfigure store displays so that an employee in a wheelchair can get water and have access to all parts of the store.
Example: If moving boxes of files into a storage room is a function that a secretary performs only from time to time, this function could likely be reallocated to other employees if the secretary's severe back impairment makes him unable to perform it.
But: You do not have to remove the essential functions (i.e., fundamental duties) of the job.
Example: Where an employee has to spend a significant amount of time retrieving heavy boxes of merchandise and loading them into customers' cars as part of his job, he probably cannot be relieved of this duty as an accommodation.
Where your workforce is small and all workers must be able to perform a number of different tasks, job restructuring may not be possible.
Example: A telemarketer, proofreader, researcher, or writer may have the type of job that can be performed at least partly at home.
But: Where the work involves use of materials that cannot be replicated at home, direct customer and co-worker access is necessary, or immediate access to documents in the workplace is necessary and cannot be anticipated in advance, working at home likely would present an undue hardship.
Example: An accountant for a small employer whose medication for depression causes extreme grogginess in the morning may not be able to begin work at 9:00 a.m., but could work from 10:00 until 6:30 without affecting her ability to complete tasks in a timely manner.
Example: It may be an undue hardship to adjust the arrival time for someone on a construction crew if it would affect the ability of others to begin work.
But: Not all requests for leave as a reasonable accommodation must be granted. For example, where a job is highly specialized, so that it will be difficult to find someone to perform it on a temporary basis, and where the employee cannot provide a date of return, granting leave and holding the position open may constitute undue hardship.
Example: If the Executive Chef at a top restaurant requests leave for treatment of her disability but cannot provide a fixed date of return, the restaurant can show undue hardship because of the difficulty of replacing, even temporarily, a chef of this caliber. Moreover, it leaves the restaurant unable to determine how long it must hold open the position or to plan for the chef's absence.
Example: A restaurant food server requests 10 to 14 weeks off for disability-related surgery with the date of return depending on the speed of recuperation. The employer must decide whether granting this amount of leave, and doing so without a fixed date of return, would cause an undue hardship.
Example: A retail store that does not allow its cashiers to drink beverages at the checkout and limits them to two 15 minute breaks per day may need to modify one rule or the other to accommodate an employee with a psychiatric disability who needs to drink a beverage once an hour due to dry mouth, a side effect of some psychiatric medications.
Example: A custodian with mental retardation might have a job coach paid for by an outside agency to initially help, on a full-time basis, the worker learn required tasks and who then, periodically thereafter, returns to help ensure he is performing the job properly.
Example: After being injured, a construction worker can no longer perform his job duties, even with accommodation, due to a resulting disability. He asks you to reassign him as an accommodation to a vacant, higher-paid construction foreman position for which he is qualified. You do not have to offer this reassignment because it would be a promotion.
Example: The host responsible for escorting diners to their seats at one of three restaurants operated by your business can no longer perform the essential functions of her position because a disability requires her to remain mostly sedentary. However, she is qualified to perform the duties of a vacant cashier position, which has the same salary, at one of your other restaurants. You must offer her a reassignment to the cashier position at the other restaurant as a reasonable accommodation.
But: Reassignment is not available to applicants; therefore, you would not have to look for a job for a person with a disability who is not qualified to do the job for which he or she applied, unless you do this for all applicants for other available jobs.
Basic rule: The ADA allows you to ask questions related to disability and even require a medical examination of an employee whose medical condition appears to be causing performance or safety problems.
Direct Threat: You also may reject a job applicant with a disability or terminate an employee with a disability for safety reasons if the person poses a direct threat (i.e., a significant risk of substantial harm to self or others). Employers have legitimate concerns about maintaining a safe workplace for all employees and members of the public and, in some instances, the nature of a particular person's disability may cause an unacceptable risk of harm.
Practice tip: You must be careful not to exclude a qualified person with a disability based on myths, unsubstantiated fears, or stereotypes about that person's ability to safely perform the job.
Example: You cannot automatically prohibit someone with epilepsy from working around machinery. Some forms of epilepsy are more severe than others or are not well-controlled. On the other hand, some people with epilepsy know when a seizure will occur in time to move away from potentially hazardous situations. Sometimes seizures occur only at night, making the possibility of a seizure on the job remote.
Example: A restaurant could not deny someone with HIV infection a job handling food based on customers' fears that the condition could be transmitted, since there is no real risk of transmitting HIV through food handling.
Food safety - A special rule: Under the ADA, the Department of Health and Human Services annually issues a list of the infectious or communicable diseases transmitted through the handling of food. (Copies of the list may be obtained from Center for Infectious Diseases, Centers for Disease Control & Prevention, 1600 Clifton Road, N.E., Mailstop C09, Atlanta, GA 30333 (404) 639-2213.)
Example: An employer may not reject an applicant who had been treated for major depression but had worked successfully in stressful jobs for several years based on speculation that the stress of the job might trigger a future relapse.
Example: A deaf mechanic cannot be denied employment based on the fear that he has a high probability of being injured by vehicles moving in and out of the garage if an accommodation would enable him to perform the job duties with little or no risk, such as allowing him to work in a corner of the garage facing outward so that he can see any moving vehicles.
Example: An employer may fire an employee who is drinking alcohol while on the job if it has a uniformly applied rule prohibiting such conduct.
But: There may be times when you may have to accommodate an employee with alcoholism. For example, an employer may have to modify a rule prohibiting personal phone calls at work for an employee with alcoholism who periodically has to contact his "AA sponsor," if the employee has a need to do so during work hours.
Basic rule: A charge means only that someone has alleged that your business discriminated against him/her on a basis that is protected under Federal equal employment opportunity law: race, color, national origin, religion, sex, age, or disability. A charge does not constitute a finding that you did, in fact, discriminate.
Practice tip: EEOC's mediation program is free. The program is voluntary and all parties must agree to take part. The mediation process also is confidential. Neutral mediators provide employers and charging parties the opportunity to reach mutually agreeable solutions. If the charge filed against your company is eligible for mediation, you will be notified by the EEOC of your opportunity to take part in the mediation process. In the event that mediation does not succeed, the charge is referred for investigation.
Example: An employee filed a charge against her supervisor alleging disability discrimination, which the employer believed to be without merit. After receiving the charge, the employer told the employee that she would be fired if she filed another meritless charge against it. The employee filed another charge against the employer and she was fired. Even assuming the charges of discrimination were without merit, the employee has a strong claim that the employer unlawfully retaliated against her.
Practice tip: Even if you believe that the charge is frivolous, submit a response to the EEOC and provide the information requested. If the charge was not dismissed by the EEOC when it was received, that means there is some basis for proceeding with further investigation. There are many cases where it is unclear whether discrimination may have occurred and an investigation is necessary. You are encouraged to present any facts that you believe show the allegations are incorrect or do not amount to an ADA violation.(3)
The Internal Revenue Code includes several provisions aimed at making businesses more accessible to people with disabilities. The following is designed to give you general information about three of the most significant tax incentives. It is not legal advice. You should check with your accountant or tax advisor to find out whether you are eligible to take advantage of these incentives or visit the Internal Revenue Service's website, www.irs.gov, for more information. Additionally, consult your accountant or tax advisor about whether there are similar state and local tax incentives.
Below are a few of the most frequently consulted resources for accommodating qualified individuals with disabilities. Many other resources exist both nationally and locally, such as organizations of and for individuals with particular types of disabilities. Finding one of these organizations in your area may be as simple as consulting your local phone book. Additionally, the federal government has a web site, www.disabilitydirect.gov, which provides links to many federal resources.
Job Accommodation Network (JAN)- provides lists based on specific disabilities as well as links to various other accommodation providers.
P.O. Box 6080
Morgantown, WV 26506-6080
(800) 526-7234 or (304) 293-7184
U.S. Department of Labor
For written materials: (800) 959-3652 (voice); (800) 326-2577 (TTY)
To ask questions: (202) 219-8412
ADA Disability and Business Technical Assistance Centers (DBTACs) - 10 federally funded regional centers to provide assistance on all aspects of the ADA.
RESNA Technical Assistance Project - can refer individuals to projects offering technical assistance on technology-related services for individuals with disabilities.
(703) 524-6686 (voice); (703) 524-6639 (TTY)
Access for All Program on Employment and Disability
School of Industrial and Labor Relations
106 ILR Extension
Ithaca, NY 14853-3901
(607) 255-7727 (voice); (607) 255-2891 (TTY)
Many businesses say that they would like to hire qualified individuals with disabilities, but do not know where to find them. The following resources may be able to help. In addition, you may contact organizations of and for individuals with specific disabilities in your area and consult www.disabilitydirect.gov.
RISKON - executive recruitment firm committed to helping people with disabilities find jobs:
15 Central Avenue
Tenafly, NJ 07670
(201) 568-5830 (fax)
National Business & Disability Council - provides full range of services to assist businesses successfully integrate people with disabilities into the workplace:
Job Accommodation Network (JAN) - provides a variety of resources for employers with employees with disabilities and those seeking to hire employees with disabilities:
P.O. Box 6080
Morgantown, WV 26506-6080
(800) 526-7234 or (304) 293-7184
Employer Assistance Referral Network (EARN) - a national toll-free telephone and electronic information referral service to assist employers in locating and recruiting qualified workers with disabilities. EARN is a service of the U.S. Department of Labor, Office of Disability Employment Policy with additional support provided by the Social Security Administration's Office of Employment Support Programs:
1-866- EARN NOW (327-6669)
2. If you are a federal contractor, you will also have obligations under Section 503 of the Rehabilitation Act. This law prohibits discrimination and requires contractors and subcontractors to take affirmative steps to hire and to promote qualified individuals with disabilities.
For further information on the requirements of Section 503, contact the Office of Federal Contract Compliance Programs (OFCCP) of the U.S. Department of Labor at (202) 693-0100 (Voice) or (800) 326-2577 (TDD), or at www.dol.gov/esa/ofcp_org.htm.
3. The Small Business Regulatory Enforcement Fairness Act allows small businesses to comment about federal agency enforcement actions to an SBA Ombudsman. For information about this process and how to submit a comment, see Small Business and Agriculture Regulatory Enforcement National Ombudsman. It is EEOC policy to ensure that employers are not targeted for enforcement actions as a result of their comments to the SBA Ombudsman.