General Counsel
FAQ: ADA (Americans with Disabilities Act) - Employment (Title I)
This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or your Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.
Revised 09/27/2010
Q. If an employee states that he/she is disabled and cannot
perform his or her job duties, what should an employer
do?
A. An employer should ask the employee for supporting
documentation (i.e., medical documentation) to assist
the employer in determining the nature, type and extent
of the disability and whether it affects an employee’s ability
to perform the essential functions of his or her position. An employer
should also contact the campus human resources office or legal staff
to obtain adequate advice and consultation during this process.
Q. Should an employer voluntarily approach an employee
if the employer suspects the employee is disabled and
needs an accommodation?
A. It depends. In general, an employer should not
assume or speculate about an employee’s physical or mental impairment.
However, if an employee’s work-related performance is affected
by an impairment, the employer should discuss the work-related performance
issues with the employee, such as behavior, work performance or attendance.
On the other hand, if an employee believes that an impairment is affecting
work performance, the employee should notify the employer so that it
can be determined whether the impairment is a disability (and whether
an accommodation is necessary). If a question or concern arises, the
employer should contact the applicable campus human resources or affirmative
action personnel to discuss the situation in detail for guidance and
direction.
Q. May an employer establish specific attendance and leave
policies, even though they may have a more severe effect on an
employee with a disability?
A. Yes, as long as those policies are applied in
a similar and consistent manner toward all employees, regardless of
a disability.
Q. Is reassignment to a different position a reasonable
accommodation?
A. In general, an employer should only consider
reassignment if an accommodation in the employee's current position
is unfeasible. If the employer offers reassignment, it must be to a
vacant position for which the employee is qualified. An employer is
not required to create a new position. Further, an employer is not
required to disregard the terms of a collective bargaining agreement
for purposes of a reassignment, transfer or vacancy.
Q. Is a promotion a reasonable accommodation?
A. It depends. Under the ADA, an employer is not
required to create a new position, "bump" other employees,
or promote a disabled employee for the sole purpose
of providing an accommodation.
Q. Does an employer need to provide the employee's chosen
accommodations?
A. No. Under the ADA, an employer is only required
to provide a reasonable accommodation which will allow a qualified
employee with a disability the opportunity to perform the essential
functions of the job. Determining the type and nature of one or more
accommodations should be an interactive process between the employer
and the employee. Note that the employer has the ultimate discretion
to determine what accommodation will be provided. An employee does
not have the right to demand a particular accommodation or the “best” accommodation.
Q. Must an employer modify existing facilities to provide
a disabled employee reasonable access to the workplace?
A. Yes, if doing so is necessary to provide a reasonable
accommodation for a specific employee with a disability and does not
impose undue financial or administrative hardship on the employer’s
business or operations.
Q. What is considered as an “undue financial or administrative
hardship” for purposes of determining whether an accommodation
is reasonable?
A. Undue hardship is defined as an action requiring
significant difficulty or expense when considered in light of factors
such as an employer's size, financial resources, and the nature and
structure of its operation. For example, an employer is not required
to lower quality or production standards to make an accommodation,
nor is an employer obligated to provide personal use items such as
glasses or hearing aids. However, an employer may provide certain work-related
equipment, such as telephone devices or computer devices to assist
an employee in performing the essential functions of his or her job.
Q. Does the ADA protect an applicant or employee who currently
uses illegal drugs or alcohol?
A. No, such a person is specifically excluded from
the definition of a qualified individual with a disability. However,
an addiction may qualify as a disability for purposes of the ADA. If
so, the employer may be required to provide certain reasonable accommodations
upon request, such as use of leave or benefits for medical and/or professional
treatment or counseling.
Q. What if an employee’s performance
is deficient because of drug or alcohol use? Can the employer discipline
the employee based on job performance?
A. Yes. An employer may discipline or discharge
an employee (or refuse to hire an applicant) who uses alcohol or drugs
in a manner that adversely affects job performance or conduct. An employer
may also prohibit the use of alcohol or drugs in the workplace.
Q. What are an employer's recordkeeping requirements under
the ADA?
A. An employer shall maintain all employment-related
records (including applications and supporting documentation relating
to hiring) in accordance with the Wisconsin Public Records Act and
federal law. This includes all letters, documents, certifications and/or
medical records relating to an individual’s disability, requests
for accommodation(s) and written correspondence between employer and
employee throughout the accommodation process. The employer must also
maintain records relating to promotion, transfer, layoff or termination,
rates of pay or other terms of compensation, and selection for training.
These records must be maintained for a minimum of one (1) year after
the record is created or action is taken, whichever occurs later. In
addition, if a person files a disability discrimination charge or if
the Equal Employment Opportunity Commission brings an action, an employer
must save all personnel records related to the charge until its final
disposition.
Q. May an employer consider mitigating
measures, such as medication that corrects the impairment, in determining
whether an employee has a disability?
A. No. In accordance with the ADA Amendments Act of 2008, an individual’s
use of one or more mitigating measures (except ordinary eyeglasses
or contact lenses) cannot be considered in determining whether an impairment
substantially limits a major life activity (note that negative effects
can be considered). This includes measures such as medication, equipment,
devices, hearing aids, use of assistive technology, auxiliary aids
or services, among others.
Q. May an employer consider mitigating measures in assessing
whether an employee is entitled to a reasonable accommodation
or poses a direct threat to self or others?
A. Yes. The ADA Amendments Act of 2008’s prohibition
on assessing the positive effects of mitigating measures applies only
to the determination of whether an individual meets the definition
of “disability.” All other determinations, including the
need for a reasonable accommodation and whether an individual poses
a direct threat, can take into account the positive and negative effects
of a mitigating measure. For example, if an individual with a disability
uses a mitigating measure which eliminates the need for a reasonable
accommodation, then an employer will have no obligation to provide
one.