General Counsel
FAQ - Introduction to The Americans with Disabilities Act: 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.
Q. Must an employer reallocate an essential job function
to another employee as a reasonable accommodation?
A. No. If a person with a disability cannot perform
an essential job function, he or she is not qualified.
Q. Does the employer need to approach an employee if he
or she suspects the employee needs an accommodation?
A. No. The ADA requires an employer to accommodate
known disabilities; generally, the employee or applicant is responsible
for informing the employer that he or she needs an accommodation. Your
institution's human resources or affirmative action personnel should
be able to provide more specific information concerning this issue.
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 apply equally to
all employees, regardless of disability. An employer may, however,
be required to modify an attendance or leave policy to provide a reasonable
accommodation.
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.
Q. Is a promotion a reasonable accommodation?
A. The employer is not required to create a new position, "bump" other
employees, or promote a disabled employee as a reasonable accommodation.
Q. Does an employer need to provide the employee's chosen
accommodations?
A. No. The duty to provide a reasonable accommodation
does not require the employer to provide the "best" accommodation
available or the employee's suggested accommodation. As long as the
accommodation is reasonable and effective in providing equal opportunity
to a person with a disability, the employer is in compliance with the
ADA.
Q. Must an employer modify existing facilities to make them
accessible?
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.
Q. Does the ADA protect an applicant or employee who currently
uses illegal drugs?
A. No, such a person is specifically excluded from
the definition of a qualified individual with a disability. A non-using
drug addict may, however, be considered disabled.
Q. Does the ADA protect alcoholics?
A. Yes. An alcoholic who is qualified to perform
the essential functions of the job is protected by the ADA and is
entitled to a reasonable accommodation. Nonetheless, an employer
may discipline, discharge or refuse to hire an alcoholic whose use
of alcohol adversely affects job performance or conduct. An employer
may also prohibit the use of alcohol at the workplace.
Q. What are an employer's recordkeeping requirements under
the ADA?
A. An employer must maintain job application and
other records relating to hiring, as well as requests for reasonable
accommodations. 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 one year after making the record or taking the action
described, whichever occurs later. 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. Yes, but the employer should consult the General
Counsel's Office or Campus Legal Counsel.