The Small Business at Work Toolkit

Tips, checklists, and resources to help managers lead a disability inclusive workforce.
5
Two diverse businesspeople chatting beside an open laptop in an office.

The ADA

The Americans with Disabilities Act (ADA) in a small business

Disability and employment laws covering small businesses

Since 1990, the Americans with Disabilities Act (ADA) has sought to promote the rights of people with disabilities to participate equally in all areas of community life. It is the main US law covering the employment of people with disabilities in the private sector. Businesses with 15 or more employees must comply with the ADA.

There are some other disability and employment laws that might affect some small businesses. Business who have $15,000 or more in federal contracts must comply with Section 503 of the Rehabilitation Act and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) (for contracts over $150,000). Finally, state laws can cover disability and employment.

ADA Basics

A woman sits at a desk with an open book and open laptop while taking notes on a paper padThe ADA protects applicants and employees from being treated differently because of a disability in all aspects of employment. This includes hiring, promotion, training, and development, accommodation, termination, and other benefits of employment. What should you know?

  • The ADA does not have a disability quota.
  • Small businesses can hire the most qualified applicant, with or without a disability. It’s important not to assume that someone with a disability won’t be qualified.
  • The US Equal Employment Opportunity Commission (EEOC) enforces the employment requirements of the ADA.

What counts as a disability under the law?

People who meet the ADA definition of a disability have rights under the ADA. Disability is defined as a physical or mental impairment that substantially limits one or more major life activities.[1] Generally, anyone who has an impairment that affects their daily functioning and that is expected to last more than a few months should be assumed to have a disability under the ADA. For more detail, see Tool 2, What Is Disability?.

Asking about disabilities

The ADA limits when an employer can ask applicants or employees about disability:

  • During hiring, applicants cannot be asked questions that make the applicant disclose their disability status, such as Are you taking any medications? or Have you ever collected workers compensation?
  • Employers can ask workers about a disability only under certain conditions, such as when an employee is requesting an accommodation or when the employer has a reasonable belief that the employee needs an accommodation or could pose a safety risk. For more information, go to the Q&A page on disability-related inquiries and medical exams from the EEOC.

Accommodations

What is reasonable accommodation? Comics have two office workers; one is intended to be a small business owner (male) and the other someone in an HR Role (female). Panel #1 Disability Disclosure Small business owner: ‘Silva told me she’s having trouble reading the small text on her computer.’ Someone in an HR Role: ‘Silvia may have disclosed a disability. Let’s talk to her about how we can provide a reasonable accommodation.’ Supporting text: Disability disclosure occurs when an employee tells their employer that because of a disability/health condition they’re having trouble performing an essential job task  Panel #2 Reasonable Accommodation Small business owner: ‘What’s a reasonable accommodation? It sounds complicated…’ Someone in an HR Role: ‘It’s not as hard as you think! We’ve already provided accommodations like special keyboards, flexible schedules and time off for regular doctor appointments.’ Supporting text: A reasonable accommodation is a change in the way that work is customarily performed to allow the person to complete the tasks.  Panel #3 Accommodation Process Small business owner: ‘Well, we do try to give all our employees what they need to do their best work.’ Someone in an HR Role: ‘YES WE DO! And, when a disability is involved, we a have legal obligation under the ADA.’ Supporting text: Having a clear process in place can help make providing accommodation fair and equitable for all employees with or without a disability.

Small-business employers are required to provide accommodations to employees and applicants with disabilities. Accommodations are any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.

There are a few things to know about accommodations:

  • Generally, employees get accommodations by simply asking for them. The applicant or employee does not have to mention the ADA or use any specific language. They can just tell you that they have a medical condition that makes performing part of their job difficult, or ask to do something differently because of a disability.
  • Employers can (but aren’t required to if the disability or need is obvious) get medical information from the employee to help determine their work limitations and what accommodation will be effective.
  • The employer is responsible for providing reasonable accommodations to their employees. In the event that this causes an undue hardship for the employer, they should speak to the employee about alternatives that might also work to resolve the problem.
  • You can review guidance on reasonable accommodation from the EEOC.
  • Don’t hesitate to reach out to your regional ADA Center if you have questions. It’s important to know that the cost of accommodations is usually far less than what employers expect.[2]

The ADA, health insurance, and other areas of work life

An office workers sits at his desk looking at a computer screen. He is missing the hand on one of his arms.Other areas of work life covered by the ADA include protections against disability harassment, unequal access to training opportunities, and unequal pay and benefits (as compared to similarly situated workers). The ADA requires employers to provide workers with disabilities with the same health insurance coverage provided to others. Employers are not required to provide additional insurance to employees with disabilities.

The nitty-gritty: Ten ADA pitfalls for small businesses

  1. Using a narrow view of “disability.” The Americans with Disabilities Act (ADA) defines disability broadly. Employees can have rights under the ADA whether or not their disability is noticeable. For example, mental illness, multiple sclerosis, seizure disorder, and PTSD are usually considered disabilities under the law.
  2. Applying workplace policies unevenly or unfairly. When workers with disabilities (or with some types of disabilities) are treated differently than others, the employer runs a higher risk of violating the ADA.
  3. Using job descriptions that don’t clearly identify essential vs. marginal functions. Job descriptions go beyond job postings. They are formal, public statements about the purpose and expectations of a job. Several key parts of the ADA are based on whether a job function (task) is essential or marginal, and job descriptions should specify which job functions are essential and which are marginal. An essential function justifies the existence of a job and is a something that few others in the workplace could do (such as driving for a truck driver or answering phone calls for a phone receptionist). A marginal function doesn’t require special skills and could be done by others in the workplace.
  4. Assuming too much about an employee’s disability. People with the same disability can have very different levels and types of impairments. Also, what is an impairment in one job might not be an impairment in another. Treat each person and each situation as unique. Don’t make decisions before you’ve done some listening.
  5. Failing to recognize and respond to an accommodation request. Workers do not need to use legal or formal language to make an accommodation request. They just need to tell the employer that they are struggling on the job because of a disability. Supervisors and managers are often on the frontline of accommodation requests in small businesses and need to be aware of accommodation rights and processes.
  6. Collecting too much medical information and not keeping it confidential. The ADA allows the employer to collect employee medical information in certain situations, such as determining a reasonable accommodation or assessing a safety risk. If you do this, collect only the medical information you really need to make a good decision. Then, keep this information in a different file than personnel information. Make sure it is not shared with others.
  7. Terminating too quickly. The decision to terminate an employee with a disability should be made only after you have made a good faith effort to accommodate and after there is clear evidence of a safety or performance issue that can’t be mitigated with accommodation.
  8. Making decisions based on a history or assumption of disability. The ADA doesn’t allow discrimination against employees who have a record of a disability or are being regarded as (or seen as) having a disability. For example, the ADA prohibits not promoting an employee who is now sober but who was found to have a history of drug addiction.
  9. Communicating inadequately. Misunderstandings and anger often arise simply from a lack of communication. Never drop the ball when communicating broadly about issues such as the importance of disability inclusiveness or when communicating with individuals about issues related to their disability. Finally, always document these communications, including all interactions related to disability issues and the reasons why decisions were taken about an employee with a disability.
  10. Failure to build a sense of belonging for all workers. As a small business leader, you set the tone that determines the climate of the workplace during everyday life. Employers who tolerate a negative or hostile climate for workers with disabilities have a heightened risk for ADA violation charges. They also risk losing talent. Many workers will not stay in a workplace where there is disrespect and distrust.

References

[1] ADA.gov. (2019). Introduction to the ADA. In Information and technical assistance on the Americans with Disabilities Act. US Department of Justice, Civil Rights Division.

[2] Job Accommodation Network. Accommodation and compliance: Low cost, high impact.