The Americans with Disabilities Act (“ADA”) just celebrated its 25th birthday. On July 26, 1990, President George H.W. Bush signed the ADA into law two years after its 1988 introduction to Congress. However, the fight to protect individuals with disabilities began much earlier with community activism around the country. This made the ADA possible.
Specifically, the ADA prohibits discrimination and strives to protect individuals with disabilities, making sure that they have the same opportunities as everyone else to enjoy life in the United States, whether it be at the workplace through educational services, or simply day-to-day life. The ADA’s implementation was a pioneering step in the right direction for the protection of the disabled community.
But it was just the beginning. In 2008, President George W. Bush signed the ADA Amendments Act. As a result, “disability’s” definition was expanded to provide for a broader interpretation and included things like mental impairments. Up to that point, there were still many restrictions on what it actually meant to be disabled. The amendment’s broad definition has brought many individuals within the ADA’s protection.
ADA Qualified Individual
A qualified individual—“an individual who with, or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires”—may be granted a reasonable accommodation under the ADA. It is the responsibility of the employer and the employee to engage in an interactive process to find a way for the employee to keep working. The employer is not required to grant every request, or an exact request, but must engage in good-faith efforts to provide reasonable and effective modifications or solutions.
Accommodations should be liberally permitted unless the employer identifies an undue hardship that would be a result of the accommodation, such as an accommodation that would require “significant difficulty or expense” on behalf of the employer. However, determining whether a hardship would in fact occur, and deciding what may be accepted as reasonable are two very current reasons for litigation. There are still many disputes in this area, specifically pertaining to leave-based accommodations, where the disabled individual requests time off from work such as a period of absences, or the ability to work from home. Employers have a more difficult time permitting these types of accommodations.
Although the ADA attempts to define “reasonable accommodation,” and even suggests that a part-time or modified work schedule may be reasonable, it fails to provide any true guidance on an amount of leave or absence that may be accepted as a reasonable accommodation.
Intersection of the ADA and the Family Medical Leave Act (FMLA)
Another issue causing much of today’s litigation, is the intersection of leave under the ADA and the Family Medical Leave Act (FMLA), which “entitles eligible employees of covered employees to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.” Concern often appears when the employee on FMLA is unable to return after their twelve weeks have concluded.
The ADA has provided a beacon of hope and introduced a recognized form of assistance for the disabled community, but there is still much work to be done. The questions of undue hardship, reasonableness, leave, and the intersection of the FMLA and the ADA still exist and leave much room for debate. 25 years in effect and, as most things, the ADA is still a work in progress. Chances are there will continue to be litigation on some of these issues. The expectation remains that further clarification on the standard is still to come.