Some of the latest publications and resources on employment and disability:

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Private employers with 15 or more employees are covered under Title I of the Americans with Disabilities Act. Title I requires covered employers to provide equal employment opportunities to qualified individuals with disabilities. Below are publications and resources to help private employers understand their rights and responsibilities and maximize the potential of their workforce.

Popular Publications and Resources

It’s All about Accommodation

(information on reasonable accommodation and how to do it)

Get on Board!

(why and how to recruit, hire, and retain workers with disabilities)

More Good Stuff

(organizations, general resources, materials collections, etc.)

State and local governments are covered employers under the Americans with Disabilities Act regardless of how many employees they have. State and local governments are required to provide equal employment opportunities to qualified individuals with disabilities.

Below are publications and resources to help state and local government employers understand their rights and responsibilities and maximize the potential of their workforce.

Popular Publications and Resources

It’s All about Accommodation

(information on reasonable accommodation and how to do it)

Get on Board!

(why and how to recruit, hire, and retain workers with disabilities)

More Good Stuff

(organizations, general resources, materials collections, etc.)

The Rehabilitation Act prohibits discrimination on the basic of disability in federal employment, and in the employment practices of recipients of federal funds and many federal contractors. Although the complaint and administrative procedures differ slightly under the Rehab Act, the basic provisions and requirements are the same as those of the ADA. Court rulings in ADA cases and guidance materials on the ADA can be instructive in applying the provisions of the Rehabilitation Act. Below are publications and resources to help federal employers understand their rights and responsibilities and maximize the potential of their workforce.

Popular Publications and Resources

It’s All about Accommodation

(information on reasonable accommodation and how to do it)

Get on Board!

(why and how to recruit, hire, and retain workers with disabilities)

More Good Stuff

(organizations, general resources, materials collections, etc.)

General Frequently Asked Questions for All Employers

1. Do I have to build a ramp or alter my facility to make it accessible even though I don’t have any employees with disabilities?

The ADA does not generally require an employer to make structural improvements in existing facilities. Architectural accessibility is addressed on a more individualized basis in the employment context. An employer may need to alter facilities in order to provide a “reasonable accommodation” to a specific worker with a disability; such alterations should meet the worker’s individual needs.

It is important to note that an employer may be covered by other parts of the ADA (or other laws) and subject to structural accessibility requirements that are not related to employment. Both commercial facilities (such as warehouses and factories) and public accommodations (businesses open to the general public, such as retail stores, restaurants, etc.) are subject to accessibility standards for new construction and alterations. Additionally, public accommodations must remove barriers in existing facilities when it is readily achievable to do so. (Visit our “Retail/Services” page for more information on public accommodations.)

Federal, state and local governments are also subject to accessibility standards for construction and alterations, and have obligations to ensure access in general to their programs and activities.

2. I have heard that I may have to provide a “reasonable accommodation” for a person with a disability applying for a job, like hiring an interpreter for a job interview. Why do I have to provide accommodations for people who don’t even work for me (yet)?

The ADA requires the provision of reasonable accommodations during the application process so that candidates with disabilities have an opportunity to be judged – like other candidates – on the qualifications, skills, talents, and experience relevant to the job. Reasonable accommodations are designed to ensure that applicants are not eliminated or unfairly disadvantaged in the job competition due to disability-related barriers that can reasonably be overcome by the employer.

Keep in mind that applicants with disabilities are required to meet the same legitimate qualification standards as other applicants (for example, if the job requires a certain educational degree, certification, or professional license, you don’t have to consider an applicant who lacks them just because the individual has a disability).

3. I want to maintain a safe workplace and treat everyone equally. Can I ask all job applicants if they have a disability before I consider other factors?

No. There is no evidence that employees with disabilities pose greater safety risks in the workplace than employees without disabilities. Research and surveys conducted by both government and industry consistently find that employees with disabilities perform their jobs as well and as safely as their co-workers without disabilities.

The ADA generally prohibits employers from asking any disability-related questions or requiring any kind of medical examinations before making a real job offer. This helps ensure that candidates are evaluated on job-related factors and not on assumptions, fears, or stereotypes, particularly if hidden disabilities are revealed before other factors are considered.

(There are other considerations for federal employers and certain federal contractors who are subject to the Rehabilitation Act. See the Federal Employers section below.)

Once real job offers are extended, disability-related questions may be asked, and medical examinations may be conducted, but only if all candidates entering the job category are subjected to the same questions and/or exams. You can’t ask disability-related questions or require medical exams in order to get information only from certain individuals because you know or suspect they have disabilities.

Employers do not have to hire or retain individuals who pose a direct threat to the health or safety of themselves or others. A direct threat is a significant risk of substantial harm that can not be eliminated or reduced to an acceptable level through the provision of reasonable accommodations. The determination that an individual poses a direct threat must be based on an individualized assessment and valid, objective evidence.

4. We have always given drug tests to all applicants before we make job offers. Do we have to stop doing that?

No. Tests to determine if individuals are currently illegally using drugs are not considered “medical exams” under the ADA, and can therefore be given prior to making job offers as long as the scope of the tests is limited to identifying current illegal use of drugs.

Employers would be well advised, however, to be cautious about how results and related information are handled. It would be prudent to limit the information reported to those who will make decisions about job offers to the relevant result (“pass” or “fail”).

For example, many individuals properly use prescription medications that may result in positive results on drug tests. Individuals can provide information to prove that the test result is based on legal drug use. The information about the prescription is irrelevant to the decision about whether to offer an individual a job, and since it may suggest the presence or nature of a disability, the decision maker is better off without it. The individual has “passed” the drug test, and this is all the decision maker needs to know at this point.

5. We give a battery of written tests to all applicants to help us select the best candidates. Does the ADA affect our ability to do that?

First of all, it is important to ensure that no medical tests are administered prior to making a job offer. There are written tests that are designed to indicate the presence, nature, or extent of various impairments, such as learning disabilities or psychiatric conditions. These tests are typically administered and/or interpreted by medical professionals and produce evidence related to diagnosis or treatment. Such tests should not be administered in the pre-offer stage of employment.

Some tests, though, even those that may seem “psychological” in nature, are merely designed to identify traits such as honesty, and are not medical tests.

Non-medical tests given prior to offering a job should be tailored to the relevant job or class or jobs so that the information obtained is meaningful in the selection process. Tests should measure the knowledge, skills, or traits that will actually be needed on the job. If a test criterion is used to eliminate a candidate with a disability, the criterion must be job-related and consistent with business necessity.

A reasonable accommodation may be needed to ensure that an applicant with a disability has an equal opportunity to obtain relevant and meaningful test results. For example, the ability to take a test in the standard written format may or may not be critical to the validity of the test result. It depends on what the test is designed to measure and how it relates to the job. The test result may be just as meaningful if the individual takes the test orally.

Testing accommodations should be carefully considered so that the individual has an opportunity to demonstrate the level of knowledge, skills, or traits that are being identified or measured, without either advantage or disadvantage compared to other candidates.

6. My new employee just asked me for an accommodation, but he never mentioned anything during the interview or application process. Do I still have to consider his request?

The ADA doesn’t require an individual to disclose the existence or nature of a disability during the job application process. There are many reasons why an individual may choose not to do so, ranging from fear of discrimination to a lack of knowledge about specific job duties or barriers that may exist in the workplace.

Additionally, employees may acquire disabilities through accidents, illnesses, or the process of aging. Individuals can not be denied consideration simply because they didn’t have, or didn’t disclose, a disability before they were hired.

Employers can help applicants understand the nature of the job and the workplace by providing detailed, up-to-date information about job duties, job demonstrations, or tours of the worksite. Employers, by taking the time to provide comprehensive information, may help applicants determine if particular jobs are a good match for them, thereby reducing the likelihood that an individual, with or without a disability, will accept a job that turns out to be unsuitable.

7. If I provide a “reasonable accommodation,” like a flexible schedule, to an employee with a disability, my other employees may resent it. How can I explain it to them?

The ADA generally prohibits covered employers from disclosing information about disability to an individual’s co-workers. Although some individuals with disabilities choose to share such personal information with colleagues, an employer may not do so.

If asked or confronted with complaints from co-workers, an employer may simply explain that there are laws that require employers to guard individuals’ personal information. Many workers will appreciate an employer which takes such matters seriously, understanding that their own privacy will be respected as well.

8. I have an employee with a disability who wants to leave early every Friday to attend her son’s soccer games. Does the ADA require that I grant this request?

The employee’s requested schedule adjustment appears to be unrelated to her disability, and therefore would not be considered a “reasonable accommodation.” Reasonable accommodations must be related to the individual’s disability.

If the employee’s non-disabled co-workers are allowed to make similar scheduling adjustments, the employee with a disability should not be denied the same consideration, but she does not need to be granted additional latitude in this regard merely because she has a disability.

9. My company has performance and conduct rules that address a variety of things, ranging from production quotas to violence in the workplace. Can I expect employees with disabilities to comply with these rules?

Yes, generally employees with disabilities can be held to the same standards as their co-workers.

Some standards are related strictly to job performance (like a production quota), and others to general conduct (such as a prohibition against violence in the workplace). Sometimes, performance standards include “conduct-like” elements, as employers often establish performance evaluation criteria that are both quantitative (e.g. producing two reports a week) and qualitative (e.g. working well with others).

Rules and standards, of course, must not be plainly discriminatory (e.g. “employees must be free of psychiatric conditions to work here”) nor designed to eliminate qualified candidates or employees with disabilities for no legitimate reason (e.g. requiring applicants for a job that does not entail driving to have a valid driver license because you think it will help you avoid hiring anyone with a seizure disorder).

Additionally, even if rules are legitimate, they can not be applied or enforced in a discriminatory manner (firing a worker with a disability for cursing on the loading dock when such language in that setting is generally tolerated, despite the existence of a general rule that prohibits profanity in the workplace).

If an employee’s disability actually causes or contributes to his inability to meet a performance or conduct standard, and the standard is job-related and consistent with business necessity, you should consider whether a reasonable accommodation will enable the employee to meet the standard. Keep in mind that the purpose of reasonable accommodations is to enable workers with disabilities to meet legitimate standards, not to excuse them from doing so.

10. My company is small and I have an employee who has been on leave for 18 months due to her disability. I want to accommodate her, but it is becoming a strain. How long do I have to keep her job available for her?

The obligation to provide reasonable accommodations is not unlimited. Employers do not have to provide an accommodation that poses an undue hardship (something that requires significant difficulty or expense).

The ADA does not establish any specific formula to determine whether an accommodation is “reasonable” or whether it is an “undue burden.” Rather, the ADA establishes guidelines to help employers and employees find solutions in their own situations.

There are many factors to consider in determining whether an accommodation is reasonable, including net cost in relation to the employer’s resources (after utilizing any available tax incentives or funding supports), disruption to the operation of the business, etc. Communication is vital. Employers should investigate possibilities and involve the employee in the process, along with experts and professionals (the employee’s doctor, therapists, rehabilitation consultants, legal advisors, accessibility specialists, etc.) who may be able to contribute.

Additional FAQs for Federal Employers

1. What’s the difference between the ADA and the Rehabilitation Act?

Some of the distinctions related to employment have to do with administrative procedures and reporting requirements. The most fundamental difference, however, is that section 501 of the Rehabilitation Act requires federal employers to have an affirmative action plan to hire and advance individuals with disabilities.

2. I really want to hire workers with disabilities, so may I ask job applicants if they have disabilities?

The Rehabilitation Act has restrictions on disability-related questions (similar to the ADA); however, employers engaged in affirmative action may invite applicants or employees to voluntarily self-identify as individuals with disabilities. Employers must make it clear that the invitation is related to affirmative action, that self-identification is strictly voluntary, and that the information will be kept confidential. Additionally, it must be clear that self-identification will be of benefit to the individual. The individual’s choice to self-identify (or not to self-identify, even where a disability is apparent) can not be used against the individual.

Additional FAQs for State or Local Government Employers

1.  Is there any difference between the way the employment provisions of the ADA apply to private employers and the way they apply to state and local government employers?

State and local government employers have the same obligations to applicants and employees with disabilities that covered private employers do. There are differences that have to do with the recourse and remedies that are available to individuals who allege discrimination.

Punitive damages are not available against state or local government employers. (Punitive damages are designed to punish employers who engage in discriminatory conduct that is malicious or recklessly indifferent to individuals’ federally protected rights.)

Additionally, court decisions related to the constitutionality of the ADA have further limited the availability of monetary damages that may be obtained from state employers.

Individuals bringing private lawsuits against state employers can not obtain monetary damages of any kind. However, individuals may sue state officials in their official capacities to obtain injunctive relief (hiring, reinstatement, policy changes, etc.).

It is important to note that the federal government is not limited the way private individuals are in this respect; the federal government may seek monetary damages against states for violations of the ADA’s employment provisions.

Additionally, the immunity does not apply to local governments. Individuals as well as the federal government may obtain monetary damages against local government employers such as cities and counties.