The Americans with Disabilities Act (ADA) was enacted in 1990 and provides comprehensive federal protection to individuals with disabilities in employment, as well as in public services, public accommodations, and telecommunications. Title I of the ADA pertains to employers and is the focus of this chapter.
The Colorado Anti-Discrimination Act (CADA) also prohibits discrimination in employment on the basis of disability. Although the CADA is substantially equivalent to the ADA, it applies to almost all employers in the state of Colorado, thus extending the duty to reasonably accommodate disabled employees to employers who would not otherwise be covered under the ADA.
The ADA applies to:
The ADA does not apply to:
In contrast the CADA applies to:
Title I of the ADA requires employers to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment opportunities available to non-disabled individuals. Specifically, the ADA prohibits employers from discriminating against persons with disabilities who are able to perform the essential functions of a job, either with or without reasonable accommodation. This protection extends to all areas of the employment relationship, including:
To be protected under the ADA, an employee must be considered a “qualified individual with a disability.” A qualified individual with a disability is a person who:
The ADA defines a qualified individual as one who possesses all of the “requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.” There are several basic steps for determining whether an individual is “qualified” under the ADA:
Are employees required to perform tasks the employer claims are essential? If an employer has never required someone in the position to perform a particular task, it is not likely to be found to be an essential function.
Does the position exist to perform a specific task? An individual may be hired to proofread documents. The ability to proofread is an essential function since that is the only reason the job exists.
How many employees are available to perform the job function? If there are a limited number of employees who can perform the job function, it is more likely to be an essential job function.
What functions did past employees in the job perform? The experience of those who have actually performed the job in question will highlight the essential job functions of that position.
How much time is spent performing the function? The more time spent on a particular function, the more likely it is to be an essential job function.
What is the consequence of not performing the job? What will happen if the job is not performed?
Was a written job description prepared before advertising or interviewing for the position? If the function is listed in the job description, there is a strong possibility it will be considered essential.
Do the functions require special training or expertise? Functions that require training or possession of a specialized skill or license are likely to be considered essential.
Is there a collective bargaining agreement in place? For employers of union workers, the terms of a collective bargaining agreement are relevant to determining the essential job functions of particular positions.
An individual with a disability under the ADA is a person who:
The Americans with Disabilities Act Amendments Act (ADAAA) became effective January 1, 2009, and expanded the term “disability” under the ADA. Millions of employees not previously covered by the ADA are now covered. The ADAAA retains the ADA’s basic definition of “disability;” however, it changes the way that the definition is interpreted. Further, pregnancy-related conditions are now covered by the ADAAA while recent changes in Colorado law carve out reasonable accommodation for working women with a non-complicated pregnancy.
The definition of a person with a disability under the CADA is substantially equivalent to the ADA’s definition, and the state law is interpreted in accordance with federal law.
The ADA broadly defines the term impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the body’s multiple systems, including, but not limited to:
The ADA further defines impairment as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Only impairments that substantially limit a major life activity qualify for the protections of the ADA. The ADA amendments changed the definitions that should be used during consideration of an employee’s disability.
The ADAAA has added a definition of “major life activities” to the ADA, which includes a lengthy illustrative list of major life activities such as:
In addition, the ADAAA redefined “substantially limits,” which no longer is defined to mean either “significantly restricted” or “severely restricted.” While the ADAAA does not provide a definition of “substantially limits,” the ADAAA does direct the EEOC to revise its regulatory definition of “substantially limits.” In response, the EEOC has adopted rules of construction that must be applied in determining whether an impairment substantially limits a major life activity.
The regulations provide that temporary, non-chronic impairments of short duration, with no residual effects (such as the common flu or a sprained ankle), do not substantially limit a major life activity and, therefore, are not disabilities.
The second part of the definition of disability covers persons who have a history of a physical or mental impairment that substantially limits one or more major life activities. This also includes individuals who have been misclassified as having such an impairment.
This part of the definition protects people who are perceived as having disabilities from employment decisions based on stereotypes, fears, or misconceptions about disabilities. It applies to decisions based on unsubstantiated concerns about:
An individual may be protected under this part of the definition in the following three circumstances:
If an employer makes an adverse employment decision based on unfounded beliefs or fears that a person’s perceived disability will cause problems in areas such as those listed previously, and cannot show a legitimate, non-discriminatory reason for the action, that action would be discriminatory under this part of the definition. However, the ADAAA includes a provision that makes it clear that if someone is protected under the ADA only because they are regarded as having a disability, no accommodations need to be made to that person.
The ADA specifically provides that an employer or other covered entity may not deny an employment opportunity or benefit to an individual, regardless of whether or not that individual is disabled, because that individual has a known relationship or association with an individual who has a disability.
The term “relationship” or “association” refers to family relationships and any other social or business relationship or association. Therefore, this provision of the law prohibits employers from making employment decisions based on concerns about the disability of a family member of an applicant or employee, or anyone else with whom this person has a relationship or association.
There are generally three situations in which this provision arises and employers should be cautious of situations like these:
Cases are just starting to emerge by employees claiming discrimination on the basis of having COVID-19. All three prongs of the definition of disability might be at play. An employee who has a current diagnosis of COVID-19 may not have symptoms and may not be limited in any major life activity; however, the same employee may be considered disabled if the employer regards the person as disabled based upon the employee’s condition or history of having had COVID-19 or its symptoms. Aggressive efforts by employers to keep COVID-19 out of their workplaces may therefore expose them to claims of disability discrimination. Both Human Resource managers and direct supervisors need to be sensitive to the risks of liability that their reaction to the situation may create. They should be guided by the science and the recommendations of the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC) in how they respond to this situation. The ADA, the Rehabilitation Act and the PHRA continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety. Useful sources of information are:
Long COVID is defined as: “a wide range of new, returning or ongoing health problems people can experience four or more weeks after first being infected with the virus that causes COVID-19.” Like the symptoms of COVID-19, the symptoms of Long COVID are not predictable or uniform. The following are some common symptoms of Long COVID:
Individuals with Long COVID are entitled to disability-based protections if the symptoms manifest in such a way so as to substantially limit at least one major life activity. Long COVID does not always reach the level of a disability under the ADA and each individual case should be assessed on its own in terms of meeting requests for reasonable accommodations.
Under the ADAAA, consideration of mitigating measures (like managing a disability through the use of medication or a wheelchair) was largely eliminated. Employers cannot consider the improvements of mitigating measures in determining whether an individual has a disability. The only exception is that eyeglasses and contact lenses can still be considered.
Certain impairments and conditions are not considered to be disabilities. These include:
The EEOC does not consider complication-free pregnancies to be a disability under the ADA because pregnancy is not the result of a physiological disorder. If, however, a pregnant woman is substantially limited in a major life activity due to her pregnancy, she can be considered disabled under the ADA.
The ADA mandates that employers provide reasonable job accommodations for persons who are otherwise qualified and able to perform essential functions of a job. A reasonable accommodation is defined as a “modification or adjustment to a job, the work environment, or the way things usually are done that enables (a disabled person) to enjoy an equal employment opportunity.”
A reasonable accommodation is required:
As a general matter, an employer is only required to accommodate known disabilities, and it is the responsibility of the individual with the disability to make the need for accommodation known to the employer. The employee does not have to specifically mention the ADA or reasonable accommodation, however. EEOC interpretive guidance assumes that few individuals will walk into an employer’s office and say, “I need a reasonable accommodation under the ADA.” Most individuals will, instead, present an employer with a set of facts that may indirectly indicate the need for an accommodation.
Once an individual requests accommodation, an employer must make a reasonable accommodation for known disabilities of the employee or job applicant unless:
Where a disability or the need for an accommodation is not obvious, employers may request reasonable medical documentation concerning the disability and any functional limitations. Employers should take care in these situations not to request an employee’s entire medical history or information unrelated to the existence of a disability.
Specific reasonable accommodations may include but are not limited to:
Each request for accommodation must be analyzed on a case-by-case basis. A reasonable accommodation must always take into consideration two factors:
Once an employer is on notice that an employee has a disability that qualifies for a reasonable accommodation, it must engage in an “interactive process” with the employee to identify possible job accommodations.
In deciding whether it can provide a disabled employee with reasonable job accommodations, the employer should consider its resources and financial ability to provide an accommodation, the functional requirements of the job, the functional limitations of the employee, and the potential disruption the accommodation may cause in the place of employment. It is important to remember that the employer is not required to provide the best accommodation or the one requested by the employee. Rather, the accommodation need only be effective to meet the job-related needs of the employee seeking accommodation. Finally, during the process of determining a reasonable accommodation, the employer should record all attempts made to accommodate a disabled employee.
Employers should accommodate a current employee by reassignment to a different job only when the employee cannot be accommodated in his/her present position. If the employer does reassign an employee with a disability, the employer is only obligated to reassign the employee to an available position.
An employer is not required to provide a reasonable accommodation where the accommodation would create an undue hardship on the employer. An undue hardship is defined as an action that would create significant difficulty or expense to an employer or would fundamentally alter the nature or operation of the company. In determining whether an employer experienced an undue hardship, the following factors are considered:
An employer may also deny accommodation to an individual normally protected under the ADA where an individual poses a “direct threat” to the health and safety of others in the workplace, as well as the health and safety of the employee requesting reasonable accommodation. The direct threat defense only applies in situations where a reasonable accommodation that would eliminate the risk or reduce it to an acceptable level is not available.
The EEOC defines a direct threat as a significant risk of substantial harm. In determining whether a direct threat exists, the EEOC and the federal courts examine the employer’s reasonable judgments regarding the following:
These factors must be based on objective, factual evidence and cannot be founded on subjective fears or stereotypes regarding the nature or effect of a particular disability.
In 2016, Colorado passed the Pregnant Workers Fairness Act, which provides certain accommodations for pregnant workers even if they have normal, uncomplicated pregnancies. The act requires employers to engage in a timely, good-faith, and interactive process with employees (or applicants) experiencing health conditions related to pregnancy or the physical recovery from childbirth to determine effective reasonable accommodations. Examples of reasonable accommodations may include:
Under Title III of the Americans with Disabilities Act (ADA) disability discrimination is prohibited in places of public accommodation, which includes businesses that are open to the public – like shopping malls, restaurants, movie theaters, medical offices, recreational facilities, airlines, etc. As such, these entities are required to modify practices, procedures, and policies that infringe upon disabled individuals’ rights in certain circumstances. This prohibition applies to both customers and employees.
The accommodation of service animals and emotional support animals has become an issue for virtually all businesses as an increasing number of individuals rely on service and emotional support animals to accomplish everyday tasks.
The ADA limits the definition of “service animals” to dogs that are individually trained to work or perform tasks for a person with a disability, although the ADA regulatory provisions also explain that miniature horses must be similarly accommodated in particular circumstances. Typical tasks performed by service animals may include, but are not limited to:
If an employee requires a trained service animal to perform certain tasks, businesses are required to permit the service animal to accompany the disabled individual anywhere other members of the public are permitted, with limited exceptions. That obligation remains even if state or local health codes prohibit animals on the premises.
Importantly, the ADA does not recognize emotional support, well-being, comfort, companionship, or guarding as a recognized task protecting an individual’s right to enter a place of public accommodation with an animal. As such, emotional support animals, including therapy dogs or comfort animals, do not qualify as service animals under the ADA – even if an individual provides a note from his or her doctor attesting to the person’s disability need. In other words, while service animals must be allowed access to a business’s premises, the ADA does not require accommodation of emotional support animals (or other types of pets), and businesses may refuse non-service animals access to their premises.
While the ADA requires accommodation for service animals, it also requires the disabled individual to control the animal while on the business premises. That control requires the employee to:
Companies are not required to provide care or food to, or clean up after, the service animal.
The ADA does not recognize the accommodation of other individuals’ allergies or fear of dogs as a valid reason for denying a service animal access to the business premises. Further, businesses are prohibited from isolating disabled individuals with service animals from other employees or customers and may not treat disabled individuals with service animals less favorably than others. For example, businesses generally may not limit a disabled individual’s access to certain portions of the business premises because another person is afraid of the animal.
One of the most difficult issues connected to service animal access involves determining whether an accommodation is required. Fact-specific determinations must be made regarding whether the employee is a qualified individual with a disability and whether the employee can be reasonably accommodated by allowing a service animal or emotional support animal to accompany him or her at work without imposing an undue hardship on the business.
Importantly, the ADA restricts the type of information a business may seek in order to determine whether it must permit the service animal access to its business premises. Below is a practical guide for lawfully evaluating that question:
If the animal is not required because of a disability or is not trained to perform a task for the disabled individual, the business may deny an employee’s accommodation request. If, however, the service animal is required because of a disability and trained to perform a task, and the employee meets the criteria to be deemed disabled under the ADA then the business must permit the service animal if necessary as a reasonable accommodation unless it becomes disruptive or a danger to other animals or individuals.
Importantly, businesses should never ask for, inquire about or require:
Doing so violates the ADA.
The ADA prohibits all disability-related inquiries and medical examinations before an offer of employment is extended. For more information on ADA laws affecting the pre-offer stage of the hiring process, please refer to Chapter 3, Recruiting and hiring.
After an offer of employment has been extended, an employer may condition the offer on the individual successfully passing a pre-employment medical examination if they do so for all entering employees in the same job category. Unlike medical examinations for current employees, post-offer examination inquiries do not have to be limited to questions related to the specific job for which the applicant has applied. If an employer chooses to administer a pre-employment test, reasonable accommodations must be provided if an applicant requests accommodation or if the employer has reason to believe one is necessary. If disability-related inquiries made during a post-offer medical examination yield information about an applicant’s disability, and an employer withdraws a conditional offer of employment based on that information, the denial of employment must meet the requirements of the ADA.
After an individual has been hired, an employer may make disability related inquiries and require medical examinations only if they are job related and consistent with business necessity.
An employer may test an applicant or employee for current illegal drug use, including marijuana, as this test is specifically exempted from the ADA medical examination restrictions and is allowed at any time. Alcohol tests and tests for legal prescription drugs, however, are considered medical examinations under the ADA – therefore, an employer is prohibited from administering these tests at the pre-offer stage of employment.
Employers must keep the confidential medical information of employees and applicants separate from the individual’s personnel files. Furthermore, employers may only reveal medical information in limited situations, and only to the degree necessary, for:
Under the ADA, alcoholism and past drug addiction are protected as disabilities. An alcoholic who is otherwise qualified to perform the essential functions of the job with or without accommodation would therefore be protected. An employer may, however, hold an employee who is an alcoholic to the same qualification standards for employment or job performance and behavior as other employees, even if any unsatisfactory performance or behavior is related to the alcoholism. Additionally, an employer can prohibit the use of alcohol on the job. An employer may not discriminate against an addict who meets both of the following criteria:
The ADA states that it should not be construed to exclude a qualified individual who:
While recovering addicts are protected under the ADA, the definition of a “qualified individual with a disability” does not include an individual who “is currently engaging in the illegal use of drugs.” Additionally, employees may be required to follow the Drug-Free Workplace Act and rules set by federal agencies relating to drug and alcohol use in the workplace regardless of the ADA.
The ADA requires the U.S. Department of Health and Human Services (DHHS) to prepare an annual list of infectious and communicable diseases that are transmitted through food handling. In situations where an individual with a disability has a disease on the list and has either applied for or works in a food handling position, the employer must be sensitive to both the health concerns of others and the needs of the disabled individual. To do this, the employer must determine whether there is a reasonable accommodation that will eliminate the risk of transmitting the disease. If there is no reasonable accommodation, the employer may refuse to assign the individual to a position involving food handling. If the individual is a current employee, the employer must consider reassigning the employee to a vacant position that does not involve food handling.
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Appendix A: Recordkeeping requirements
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Background checks — Colorado
Benefits — Colorado
Celebrating in the workplace — Colorado
Child labor — Colorado
Compliance thresholds — Colorado
Disabilities and reasonable accommodation — Colorado
Disaster planning — Colorado
Discipline — Colorado
Discrimination — Colorado
Diversity, equity and inclusion in the workplace — Colorado
Family and medical leave — Colorado
Features of the HR Library
Federal contractors and affirmative action — Colorado
Health insurance continuation coverage — Colorado
Health insurance portability and privacy — Colorado
Health insurance reform — Colorado
Immigration — Colorado
Independent contractors — Colorado
Marijuana — Colorado
Military leave — Colorado
Other types of leave — Colorado
Pandemic Preparedness — Colorado
Performance evaluations — Colorado
Personnel files — Colorado
Plant closings and mass layoffs — Colorado
Policies and procedures manuals — Colorado
Politics in the workplace — Colorado
Privacy rights — Colorado
Public Employers — Colorado
Recruiting and hiring — Colorado
Restrictive covenants and trade secrets — Colorado
Safety and health — Colorado
Snapshot – An HR audit — Colorado
Social media — Colorado
Technology and the Internet — Colorado
Telecommuting — Colorado
Temporary, leased and franchise employees — Colorado
Termination — Colorado
Unemployment insurance — Colorado
Unions — Colorado
Wages and hours — Colorado
Whistleblower protections — Colorado
Workers' compensation — Colorado
Workplace harassment — Colorado
Workplace investigations — Colorado
Workplace violence — Colorado