Whom Does the Act Cover?
Although the ADA defines the term disability, it does not include a list of conditions that are always considered disabilities. Instead, each case is considered on an individual basis. Between 1992 and September 2003, 2.5% of the charges filed and resolved under the ADA involved people with cancer. So, more than 5,000 people with cancer have contacted the Equal Employment Opportunities Commission (EEOC) about disability-related discrimination and had their cases resolved.
However, according to the EEOC, cancer is not always considered a disability.
The ADA protects you when your cancer prevents or severely restricts you from performing the variety of tasks essential to most people's daily lives, such as household chores, bathing, and brushing your teeth. But this disability must be permanent or long term.
However, the ADA also protects you if you had cancer in the past, but are well now; an employer may not discriminate against you because you used to be sick. The ADA also prevents an employer from discriminating against you if he thinks you are sick, even if you aren't.
Does the ADA Apply to My Employer?
Job discrimination against people with disabilities is illegal if practiced by:
State and local governments
Labor management committees
The law applies to employers with 15 or more employees.
Employees of the US government are not covered under the ADA. However, they are protected under a similar law, which is enforced by the Office of Federal Operations. This office can be reached at (202) 663-4599.
Which Employment Practices Does the ADA Cover?
If you have a disability and are qualified for a job, the ADA makes it illegal for the employers noted above to discriminate in employment practices, such as:
Recruitment and advertising for job openings
Job application and hiring
All other employment-related activities, terms, conditions, and privileges
It is unlawful for an employer to take action against you if you advocate for your rights under the ADA. The Act also protects you if you are a victim of discrimination because of your family, business, social, or other type of relationship or association with a person who has a disability. That means an employer cannot discriminate against you because, say, your spouse has cancer.
However, the ADA does not protect your job unconditionally just because you have a disability and are qualified for the job. The employer can terminate an employee with a disability for legitimate business reasons, such as downsizing.
The United States Equal Employment Opportunity Commission (EEOC), along with state and local civil rights enforcement agencies, enforces the part of the ADA that covers employment protection.
What Are the Essential Functions of a Job?
If you have a disability, you must be qualified to perform the essential functions or duties of a job in order to be protected from job discrimination by the ADA. Essential functions are the fundamental duties required to do the job. An employer cannot refuse to hire you because your disability prevents you from performing duties that are not essential to the job.
But you must satisfy the employer's requirements for the job such as education, employment experience, skills, or licenses. Employers are not required to lower their job standards to accommodate someone with a disability. Nor do they have to provide personal-use items such as glasses or hearing aids.
And you must be able to perform the essential functions of the job either on your own or with reasonable accommodation (see definition below).
What Is Reasonable Accommodation?
Reasonable accommodation is any change or adjustment to a job or work environment that allows a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, making a reasonable accommodation may include any of the following:
Providing or modifying equipment or devices
Part-time or modified work schedules
Reassignment to a vacant position
Adjusting or modifying examinations, training materials, or policies
Providing readers and/or interpreters
Making the workplace readily accessible to and usable by people with disabilities
An employer must provide a reasonable accommodation for a qualified applicant or employee with a disability unless the employer can show that making the accommodation would be very difficult or expensive (an "undue hardship"). These factors include the type and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. In general, a larger employer would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer. The Job Accommodation Network's analysis found that 20% of accommodations involved no cost at all and that 48% of accommodations cost between $1 and $500.
The particular facts of your case will help determine whether an accommodation will enable you to do the job and, if so, what kind of accommodation is needed. Employers do not have to be familiar with the every kind of disability to know whether or how to make a reasonable accommodation. Employers are required to accommodate only those disabilities they know about. The requirement generally will be triggered by a request from a person with a disability, who frequently can suggest an appropriate accommodation.
Accommodations must be made on case-by-case basis because the type and extent of a disability and the requirements of the job will vary in each case. If you do not request an accommodation, the employer is not obligated to provide one. If you request an accommodation, but cannot suggest an appropriate one, you and the employer should work together to identify one. There are also many public and private resources that can provide assistance without cost.
What Are the Obligations of Employers to Accommodate Individuals with Disabilities?
When you apply for a job, employers can’t ask you if you are disabled or ask about the nature or severity of a disability. Employers also may not ask you if you have or have ever had cancer. They can, however, ask you about your ability to perform specific job tasks. An employer can ask you to describe or to demonstrate how, with or without reasonable accommodation, you will perform the duties of the job.
If all new employees in similar jobs have to have a medical examination, a job offer may be given to you on condition of the results of a medical exam. The medical examinations must be job-related and consistent with the employer's business needs. However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary to conduct the employer's business. The results of all medical examinations must be kept confidential and maintained in separate medical files.
Should I Tell My Employer I Have a Disability?
If you think you will need a reasonable accommodation in order to apply for a job or to perform essential job functions, you should tell the employer that you have a disability. Employers are only required to provide reasonable accommodation if they are aware of the disability. Generally, the employee is responsible for telling the employer that an accommodation is needed. However, you are not required to offer information about any cancer history or disability when you are applying for a job.
Does the Employer Have to Select A Qualified Applicant with A Disability Over Other Qualified Applicants?
No. The ADA does not require an employer to hire an applicant with a disability over other applicants because the person has a disability. The ADA only prohibits discrimination on the basis of disability. It makes it unlawful to refuse to hire a qualified applicant with a disability because he or she is disabled or because a reasonable accommodation is required to make it possible for this person to perform essential job functions.
Do I Have to Pay for It If I Need Reasonable Accommodation?
No. The ADA requires the employer to provide the accommodation unless doing so would impose an undue hardship on the operation of the employer's business. If the cost of providing the needed accommodation would be an undue hardship, you must be given the choice of providing the accommodation yourself or paying for the portion of the accommodation that causes the undue hardship. An employer cannot make up the cost of providing a reasonable accommodation by lowering your salary or paying you less than other employees in similar job positions.
Can an Employer Offer a Health Insurance Policy that Excludes Coverage for Pre-Existing Conditions?
Yes. The ADA does not affect pre-existing condition clauses contained in health insurance policies, even though such clauses may harm employees with disabilities more than other employees. However, other laws may protect employees with pre-existing conditions.
If the Health Insurance Offered by My Employer Does Not Cover All Medical Expenses Related to my Disability, Does the Company Have to Get Additional Coverage for Me?
No. The ADA only requires an employer to provide employees with disabilities equal access to whatever health insurance coverage is offered to other employees. The same is true for employees with cancer or for employees who have family members with cancer or a history of cancer.
Does an Employer Have to Make Non-Work Areas Used by Employees, such as Cafeterias, Lounges, or Employer-Provided Transportation, Accessible to People with Disabilities?
Yes. Employers are required to make reasonable accommodation to all services, programs, and non-work facilities they provide. If making an existing facility accessible would be an undue hardship, the employer must provide a comparable facility that will enable a person with a disability to enjoy the same benefits and privileges of employment as those enjoyed by other employees, unless doing so also would be an undue hardship.
What Should I Do if I Think I’m Being Discriminated Against in an Employment Situation?
If you think you have been discriminated against in an employment practice on the basis of disability, you can file a complaint with an Equal Employment Opportunity Commission (EEOC) field office located in certain cities throughout the United States. See the Resources Section at the end of this document for contact information. If your employer is a state or local government, you should contact the US Department of Justice (see below for more details).
A discrimination charge generally must be filed with the EEOC within 180 days of the alleged discriminatory action. If a state or local law covers discrimination on the basis of disability, the charge must be filed with the proper state or local fair employment practice agency within 300 days of the discriminatory action. EEOC field offices can refer you to the agencies that enforce those laws (see Resources Section.) However, to protect your rights, it is best to contact the EEOC promptly if you suspect discrimination.
If the EEOC determines that you have been discriminated against, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment. You also may be entitled to payment of your legal fees. However, these determinations may take a considerable amount of time depending on the nature of the claim and its resolution.
When the EEOC does not believe discrimination has occurred, or when attempts to reconcile have failed and the EEOC decides not to sue on your behalf, you can request a "right to sue" letter from the EEOC 180 days after filing your complaint. After receiving the notice of right to sue, you have 90 days to file suit.