Vol. 4, No. 3, Pg. 10. The Americans with Disabilities Act of 1990 A Compliance Update.

• Author: By Roy F Haimon III

South Carolina Lawyer

1992.

Vol. 4, No. 3, Pg. 10.

The Americans with Disabilities Act of 1990 A Compliance Update

10The Americans with Disabilities Act of 1990 A Compliance UpdateBy Roy F Haimon IIISigned into law on July 26, 1990, the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq., prohibits discrimination in most aspects of the public and private sector, including employment and public accommodations. The employment title of the ADA became effective July 26, 1992 for businesses with 25 of more employees. The provisions governing public accessibility generally became effective on January 26, 1992, with delayed enforcement for certain small employers.

Most employers now have undertaken steps to comply with the new federal law. A recent survey by The Bureau of National Affairs, Inc. reveals that all but 12% of human resources managers surveyed viewed their companies as having made at least "moderate efforts" to comply with the ADA. This article outlines some of the more common areas of concern that should be reviewed by businesses owners and their lawyers.

Who Is Protected?

The ADA extends protection to "qualified individuals with a disability." A person is qualified under the ADA if he or she can perform the essential functions of the job that the individual desires or holds. The ADA regards a person as having a disability under the ADA if he or she has a physical or mental impairment that substantially limits one or more major life activity (e.g., walking, hearing or working).

These definitions are clarified to some degree by Equal Employment Opportunity Commission (EEOC) guidance, but the remaining ambiguities have drawn much comment. In addition to concern over what constitutes a physical or mental impairment, however, employers should note that "disability" status is conferred by statute on persons who have a record of such impairment or are regarded as having such an impairment. Thus, a person with a workers' compensation record or a person rumored to have a serious medical condition may be protected under the ADA.

The law also protects employees who

* use drugs under the supervision of a licensed health care professional,

* are rehabilitated and no longer abuse drugs or alcohol,

* participate in a rehabilitation program and no longer abuse drugs or alcohol or

* are erroneously regarded as improperly using drugs or alcohol. These categories of protected persons demonstrate the importance of reviewing drug testing and rehabilitation policies for ADA compliance.

What Are the Employer's Duties?

An employer must make reasonable accommodation to the known physical or mental limitations of an otherwise qualified disabled person, unless the accommodation would impose an undue hardship on the business. In determining possible accommodations, the employer should be...