Employment Rights of the Injured Employee
I. The Americans With Disabilities Act
The Americans With Disabilities Act of 1990 (hereinafter "ADA") was signed by President Bush on July 26, 1990. While certain provisions of the ADA became immediately applicable, the section on discrimination in employment in the private sector did not take effect until July 26, 1992.
The ADA prohibits discrimination against persons with disability in private employment, as well as in public transportation, public accommodations and telecommunications.
Title I of the ADA, which addresses employment issues, provides that businesses covered by the ADA may not discriminate against a "qualified individual with a disability" on the basis of the disability.
Discrimination with regard to job application procedures, hiring, discharges, compensation, advancement, job training and other terms, conditions and privileges of employment is expressly prohibited.
A person is deemed to be a "qualified individual" under the ADA if he or she can perform, with or without reasonable accommodation, the essential functions of the employment position he or she holds or desires.
The ADA specifically states that the employer's judgment regarding the essential functions of a job or any written description of the job will be considered as evidence in determining if an individual is qualified.
A broad range of actions that may constitute a reasonable accommodation are listed in the ADA, including, but not limited to,
making certain existing facilities
are readily accessible and usable;
restructuring jobs;
providing part-time
or modified work schedules;
reassigning an employee to a vacant position;
acquiring or modifying equipment or devices;
furnishing qualified readers
or interpreters;
and other similar accommodations.
Under the ADA, failure to make reasonable accommodations to the known limitations of a disabled applicant or employee is an act of discrimination unless the employer can show that the accommodations would impose an "undue hardship" on the operation of the business.
"Undue hardship" is vaguely defined as "an action requiring significant difficulty or expense". Factors to be considered in determining whether an undue hardship exists include the overall size of the business in terms of employees, facilities, and budget; the type of operation involved, including the structure of the work force; and the nature and cost of the accommodation needed.
The ADA prohibits medical examinations or inquiries regarding whether an applicant or employee has a disability or as to the nature or severity of a disability. An employer may, however, inquire into the ability of an applicant to perform job-related functions. The only exception to this prohibition allows employers to require a medical examination after an offer of employment has been made.
Remedies include reinstatement of employment, recovery of lost wages, compensatory as well as punitive damages, attorney's fees and costs.