Americans With Disabilities Act                                          

Donald W. Fohrman & Associates, Ltd's., team of employment attorneys are experienced in the handling of American with Disabilities Act (ADA) lawsuits on behalf of seriously injured or disabled workers who have been fired, or otherwise discriminated against on the basis of their disability.

The following is intended to provide the seriously injured or disabled with basic information regarding their rights and remedies provided by the ADA.

FREQUENTLY ASKED QUESTIONS

1. What is the Americans with Disabilities Act (ADA)?

2. Who is protected by the ADA?

3. How does the ADA define "essential functions" of a job?

4. How does the ADA define a "qualified individual with a disability?"

5. What does the ADA consider to be a major life activity?

6. What is considered a qualified disability under the ADA?

7. What is a "reasonable accommodation" under the ADA?

8. What is considered an "undue hardship" under the ADA?

9. What employers are covered by the ADA?

10. Who is responsible for enforcing the ADA?

11. Are injured employees who are receiving Workers' Compensation benefits automatically entitled to protection under the ADA?

12. Under what circumstances are injured workers protected by the ADA?

13. Are workers who develop Carpal Tunnel Syndrome or other types of repetitive stress injuries protected by the ADA?

14. What steps do I have to take to protect my right to sue for damages under the ADA?

15. How do I find a qualified attorney to pursue my case for employment discrimination under the ADA?

16. What employment practices are covered by the ADA?

17. What types of damages can I recover if I establish disability discrimination under the ADA?

1) What is the Americans with Disabilities Act?

A. The Americans with Disabilities Act (ADA), is a federal law enacted in 1990 which prohibits discriminatory hiring and personnel practices against "qualified individuals with disabilities." It requires employers to make "reasonable accommodations" to the employees with qualified disabilities unless the requested accommodation presents an "undue hardship" upon the employer or poses a "direct threat" to other employees.

The ADA is intended to remove barriers which prevent individuals with disabilities from enjoying the same employment opportunities available to persons without disabilities. The ADA doesn't guarantee equality for disabled persons, but it does require employers to ignore any disability of a qualified individual when making hiring and firing decisions.

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2) Who is protected by the ADA?

The ADA covers people with both physical and mental disabilities. One must meet the ADA requirement of a "qualified individual with a disability" who can perform the essential functions of a job without a "reasonable accommodation."

There are three different groups of individuals who are protected under the Act.

1. A "qualified individual" with a physical or mental impairment that "substantially limits" a "major life activity."

2. A person who has a record of a disability

3. A person who is regarded as having a disability.

Persons with HIV, diabetes, heart disease or certain emotional illnesses are covered by the ADA. Some conditions, such as illnesses resulting from current illegal drug use, are specifically excluded under the ADA.

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3) How does the ADA define "essential functions" of a job?

A. "Essential functions" are defined as the basic job duties that an employee must be able to perform with or without a reasonable accommodation.

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4) How does the ADA define a "qualified individual with a disability?"

A. A "qualified individual with a disability" is someone who can perform the "essential functions" of the job with or without a reasonable accommodation. An employer does not have to hire a disabled applicant who is not qualified. Moreover, under the ADA, the employer can select the most qualified person for the job so long as their decision was not based on the fact that the applicant had a disability.

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5) What does the ADA consider to be a major life activity?

A. Some examples of what constitutes a "major life activity" under the ADA are seeing, hearing, talking, walking, reading, learning, breathing, taking care of oneself, lifting sitting and standing.

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6) What is not considered a qualified disability under the ADA?

A. People with the following conditions are not protected by the ADA: kleptomania, current use of illegal drugs or disorders caused by the current illegal use of drugs, compulsive gambling and sexual behavior disorders.

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7) What is a "reasonable accommodation" under the ADA?

A. An employer shall provide "reasonable accommodation" to the known physical or mental limitations of a qualified person with a disability, unless doing so creates an undue hardship. "Reasonable accommodations" may include:

• purchasing or modifying equipment or devices;

• job restructuring;

• part-time or modified work schedules;

• reassignment to a vacant position;

• adjusting or modifying examinations;

• writing new training materials or policies;

• providing qualified readers or interpreters;

• making the workplace readily accessible and usable by people with disabilities.

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8) What is considered an "undue hardship" under the ADA?

A. An "undue hardship" means that an accommodation would be unduly costly, extensive, substantial or disruptive or would fundamentally alter the nature or operation of the business.

Factors to consider in determining what is an undue hardship include:

• the nature and cost of the accommodation;

• the overall financial resources of the facility and covered entity;

• the number of persons employed at the facility or by the company as a whole.

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9) What employers are covered by the ADA?

A. Private employers, state and local government, employment agencies, labor, organizations and labor management committees with 15 or more employees must comply with the ADA.

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10) Who is responsible for enforcing the ADA?

The Equal Employment Opportunity Commission (EEOC) is the governmental agency responsible for enforcing the provisions of the ADA. The EEOC is authorized to conduct investigations, make rulings and attempt conciliations between employers and employees.

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11) Are injured employees who are receiving Workers' Compensation benefits "automatically" entitled to protection under the ADA?

A. Not necessarily. The definition of a "disability" under state Workers' Compensation laws differs from that under the ADA. Therefore, many injured workers who qualify for benefits under Workers' Compensation or other disability benefit laws may not be protected by the ADA.

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12) Under what circumstances are injured workers protected by the ADA?

A. For injured workers to be protected by the ADA, they must meet the ADA's definition of a "qualified individual with a disability." The worker must have an impairment that "substantially limits a major life activity." The worker must also be able to perform the essential functions of their job, with or without an accommodation.

For example: If a construction worker falls from a ladder and breaks a leg and the leg heals normally, although the worker may be awarded Workers' Compensation benefits for the injury, he or she would not be considered a person with a disability under the ADA.

The impairment suffered from the injury did not "substantially limit" a "major life activity" since the injury healed normally and had little or no long term impact.

However, if the worker's leg took significantly longer to heal than normal and during this period the worker could not walk (a major life activity) he or she would be considered to have a "disability" under the ADA. If the injury caused a permanent limp, the worker might be considered disabled under the ADA if the limp substantially limits the worker's walking.

An employer must consider work-related injuries on a case by case basis to know if a worker is protected by the ADA.

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13) Are workers who develop Carpal Tunnel Syndrome (CTS) or other types of Repetitive Stress injuries (RSI) protected by the Americans with Disabilities Act?

A. Yes. Courts have ruled that in situations where CTS and RSI progress to the state in which they are considered "serious and permanent" (some degree of nerve damage, surgery), they qualify as "disabilities" under the ADA. One of the protections afforded workers with CTS under the ADA require employers to provide them with a "reasonable accommodation" to allow them to perform the basic functions of their job.

An employer of a computer operator with CTS might be required to accommodate the worker with:

• an ergonomically modified work station;

• reduction in computer work from 8 hours to 4 or 5 hours per day, allowing the worker to perform non-computer related tasks for a portion of the day;

• voice activated software;

• and if qualified, transfer the computer operator to a different job within the company which does not require computer work.

By denying a "reasonable accommodation" to a worker with CTS, the employer will be deemed to have engaged in prohibited discrimination under the ADA.

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14) What steps do I have to take to protect my right to sue for damages under the Americans with Disabilities Act?

A. In Illinois, you must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged act of discrimination .

• If the EEOC fails to reach a finding within 180 days of filing a charge, you must request that a "Notice of Right to Sue" be issued.
  

• A lawsuit claiming discrimination under the ADA must be filed within 90 days of the issuance of the "Right to Sue" letter from the EEOC.

IMPORTANT NOTE: Procedures and filing requirements vary from state to state. Failure to follow the required time periods may cause you to lose your rights to seek a remedy for disability discrimination under the ADA.

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15) How do I find a qualified attorney to pursue my rights and remedies for employment discrimination under the ADA?

A. If you suspect that you have been discriminated on the basis of your disability, contact our office immediately. With the passage of time, valuable evidence can be lost and the memories of witnesses may fade. You do not need an attorney to file a discrimination charge with the EEOC. However, considering the legal complexities of Federal Discrimination law, it is advisable to contact our office as soon as possible.

If we determine that you have an ADA claim, we will schedule a personal consultation to review, in detail, the facts surrounding your claim.

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16) What employment practices are covered by the ADA?

A. The ADA prevents employers from discrimination in employment on the basis of a disability. Employers cannot use a disability to make decisions in:

• hiring;

• discharge;

• promotion;

• compensation;

• job training or;

• benefits.

Specifically, the ADA prohibits:

• not making reasonable accommodations to the known physical limitations to an otherwise qualified individual with a disability, unless such accommodations would impose "undue hardship" on the operation of the business;

• denying equal opportunity to a qualified individual with a disability;

• limiting, classifying or segregating any job applicant or employee because of a disability and;

• retaliation against anyone for asserting their rights under the ADA.

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17) What types of damages can I recover if I establish disability discrimination under the ADA?

A. Specific remedies are awarded to restore you to your position prior to the act of discrimination. These remedies include:

• hiring;

• promotion;

• reinstatement;

• front pay;

• back pay;

• order to reasonably accommodate;

• punitive damages and;

• attorney's fees.

If you believe that your employer has engaged in discriminatory conduct prohibited by the ADA, you need to contact Donald W. Fohrman & Associates, Ltd., at 800-437-2571 for a free, no obligation consultation with one of our qualified employment attorneys.

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