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.

 

THE FLORIDA WORKERS' COMPENSATION STATUTE ANTI RETALIATION PROVISION

Section 440.205 of Florida Statutes prohibits discrimination against employees who file a workers’ compensation claim.

Sometimes, employers seek to terminate injured employees from their workforce in order to reduce their workers’ compensation and health care liability.

Oftentimes, this is accomplished by utilizing a pretextual (false) reason for termination of the employee. Such action is unlawful and challengeable under this Florida statute.

Remedies available include reinstatement of employment, the right to lost wages, compensatory damages, plus attorney’s fees and costs.

SHORT TERM DISABILITY

Short-term disability insurance is often provided by employers to cover those periods of disability that last for up to six months.  The specifics of any short-term disability policy will vary with the terms of each policy, but generally they provide some percentage of wage payment to an employee, who is unable to perform their job based upon a medically certified disability.

LONG TERM DISABILITY

Long-term disability is often provided by employers to cover those periods of disability that are more long-term.  These policies often provide coverage after short-term disability coverage has expired.  The standards and requirements of any long-term disability will be defined by the actual insurance policy.  Similar to short-term disability, if an employee is eligible, the policy will provide some percentage of an employee’s wage during the period of disability.

The Employer is obligated under federal law to provide upon request a copy of the short-term or long-term disability policy, as well as a “summary plan description” which more simply articulates employee rights and protections under the plan.

DISABILITY DISCRIMINATION

Disability discrimination means treating individuals differently in employment because of their disability, perceived disability, or association with an individual with a disability.

Some examples of disability discrimination may include:

  • Discriminating on the basis of physical or mental disability in various aspects of employment, including: recruitment, firing, hiring, training, job assignments, promotions, pay, benefits, lay off, leave and all other employment-related activities.
  • Harassing an employee on the basis of his or her disability.
  • Asking job applicants questions about their past or current medical conditions, or requiring job applicants to take medical exams.
  • Creating or maintaining a workplace that includes substantial physical barriers to the movement of people with physical disabilities.
  • Refusing to provide a reasonable accommodation to employees with a physical or mental disability that would allow them to work.

If any of these things have happened to you on the job, you may have suffered disability discrimination.  If you have a disability and are qualified to do a job, there are federal and state laws protecting you from job discrimination, harassment, and retaliation on the basis of your disability.  You are also protected if you are a victim of discrimination because of your association (family, business, social or other relationship) with an individual with a disability.