44.312 Security Management
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Employment Laws (continued)

Americans with Disabilities Act (ADA)
passed in 1990, prohibits organizations with 15 or more employees from discrimination against disable persons n any aspect of the employment relationship. Applies both to current employees who have or may develop disabililtes, and those seeing employment.

  • defines disasbilty as:
    • physical or mental impairment that substantially limits one or more of person's major life activities
    • record of such an impairment
    • being regarded as having such an impairment
  • physical impairments could include almost any injury or illness. Psychological ones could include psychological disorders such as retardation, organic brain syndromes, emotional or mental illness, and specific learning disabilities. Major life activities include: caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, working, and learning. "Being regarded as" occurs when an employer discriminates against a person being perceived to have a disability (such as discriminating against someone who has a temporary injury because s/he appears permanently disabled).
  • doesn't cover every disabled person: s/he must be a "qualified person with a disability" i.e., one who, with or without reasonable accommodation can perform the essential functions of a position. "For the purposes of this subchapter, consideration shall be given to the employers judgment as to what functions of a job are essential, and if an employer has prepare a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job"
  • Key factors:
    • "Reasonable accommodation"
      "...may include--
      • Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
      • job restructuring, part time, or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities."
    • "undue hardship"
      generally means "an action requiring significant difficulty or expense" regarding factors such as nature and cost of the accommodation required, overall financial resources of the facility, number of persons employed there, etc.
  • What small businesses need to know about the ADA
  • Free and low-cost technical assistance on complying with the ADA
  • requires that employer give candidates conditional offer of employment before asking any medically-related questions.
  • What does it mean for recruitment and selection process?
    • in the recruiting and selection practice the employer must avoid discussing or revealing candidate's disability before conditional job offer -- that could be constructed as a medical exam or a disability-related inquiry
    • 'have to review employment ads so they describe essential job functions and don't discourage individuals with disabilities from applying (if, for example, a job fair is part of the process, must be sure the location is barrier-free)
    • "Under the ADA, drug testing is not considered a medical examination and can therefore be used as a screening tool prior to the individual
    • s receiving a conditional offer of employment. This is premised on the ADA's belief that being drug free is inherently job related and consistent with business necessity."
    • must make sure that managers who are involved in recruitment and selection process are trained in ADA-related issues, especially in interviewing
      • for example, employer can't ask f the person has a disability that would prevent s/he from performing the essential functions of the job. HOWEVER, the interviewer can ask whether the applicant can perform the essential functions of the job with or without accommodation. Why? because this isn't considered a medical question because it didn't ask if the person had a disability.
      • if the person volunteers information about a disability, the "interviewer cannot follow up on the statement or use that information as a basis for an employment; decision."

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