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This Illinois Human Resources Manual is offered to you for free. Find state specific laws and regulations below.

Disabilities and reasonable accommodations — Illinois

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 Illinois Human Rights Act (IHRA) also prohibits employers from discriminating against qualified individuals based on a physical or mental disabilities, and requires employers to make reasonable accommodations based on a known physical or mental handicap under certain circumstances. The IHRA applies to persons who have one or more employee. Generally speaking, under Illinois law, the definition of disability requires that the employee’s impairment or condition be unrelated to his or her ability to perform job functions. As a result, it is more common for employees to pursue disability claims under the ADA than the IHRA. We address the two laws in turn.

Coverage

The Americans with Disabilities Act (ADA) applies to:

  • private employers with 15 or more employees, including part-time employees
  • all public employers
  • labor organizations
  • employment agencies.

The ADA does not apply to:

  • employers with fewer than 15 employees
  • the executive branch of the federal government
  • private-membership clubs
  • churches and parochial schools
  • Native-American tribes.

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:

  • the application process
  • testing
  • hiring
  • training
  • assignments
  • evaluations
  • disciplinary actions
  • compensation
  • promotions
  • leave
  • benefits
  • all other terms, conditions, and privileges of employment.

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 possesses all of the following characteristics:

  • has a disability
  • is qualified for the job
  • can perform the essential functions of the job either with or without a reasonable accommodation.

Qualified individuals

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.” The following points are helpful in determining whether a particular task or duty is an essential function of the job:

  • Are employees actually required to perform tasks that 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 is 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.

The definition of "disability"

An individual with a disability under the ADA is a person who possesses at least one of the following characteristics:

  • has a physical or mental impairment that substantially limits one or more major life activities
  • has a record of such an impairment
  • is regarded as having such an impairment
  • has a relationship or association with someone with a known disability.

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.

A physical or mental impairment substantially limits one or more major life activities

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:

  • special sense organs
  • neurological
  • musculoskeletal
  • respiratory
  • cardiovascular
  • reproductive
  • digestive
  • genitourinary
  • hemic and lymphatic
  • skin
  • endocrine systems.

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. ADA amendments have recently changed the definitions that should be used in consideration of an employee’s disability.

The ADAAA has added a definition of “major life activities” to the ADA, which contains a lengthy illustrative list of major life activities, including:

  • caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working
  • the operation of a major bodily function, such as a function of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

In addition, the ADAAA redefined “substantially limits,” which is no longer defined to mean either “significantly restricted” or “severely restricted.” The final regulations provide the following rules for determining whether a substantial limitation exists:

  1. The term should be construed broadly in favor of expansive coverage. It is not meant to be a demanding standard.
  2. An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability.
  3. The primary focus should be whether the employer complied with its obligations and whether discrimination occurred, not whether an individual is substantially limited in a major life activity. Therefore, this determination should not require extensive analysis.
  4. The individualized assessment to determine if someone is substantially limited should require a degree of functional limitation that is lower than the standard prior to the enactment of the ADAAA.
  5. The analysis of whether an individual’s performance of a major life activity as compared to most people in the general population usually will not require scientific, medical, or statistical analysis.
  6. The determination of whether a substantial limitation exists shall be made without regard to the ameliorative effects of mitigating measures (except for ordinary eyeglasses or contact lenses).
  7. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  8. An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered substantially limiting.
  9. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting. Therefore, even conditions of short duration (such as a few months) can meet this definition.

The Illinois Human Rights Act (IHRA) itself defines disability as a physical or mental condition or characteristic resulting from disease, injury, functional disorder or a condition of birth. The law covers any individuals who:

  • have such a disability
  • have a history of such a disability
  • are thought to have such a disability and suffer discrimination as a result of this perception.

A significant difference the IHRA definition makes from the federal Americans with Disabilities Act (ADA) is that the Illinois law does not require that an individual’s disability interfere with, or limit a major life activity.

A record of such an impairment

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.

Regarded as having such 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:

  • productivity
  • safety
  • insurance
  • liability
  • attendance
  • cost of accommodation
  • accessibility
  • workers' compensation costs
  • acceptance by co-workers and customers.

An individual may be protected under this part of the definition in the following three circumstances:

  1. the individual may have an impairment which is not substantially limiting, but is treated by the employer as having one that is
  2. the individual has an impairment that is substantially limiting because of attitudes of others toward the condition
  3. the individual may have no impairment at all, but is regarded by an employer as having a substantially limiting impairment.

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 but cannot show a legitimate, nondiscriminatory reason for the action, that action would be discriminatory under this part of the definition.

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.

Having a relationship or association with someone who has a known disability

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 terms “relationship” and “association” refer 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:

  • When an employee is discriminated against because the disability of a family member may pose an increased expense to the employer.
    • Example - An individual may not be denied employment because his or her spouse is disabled and is covered by the company health plan.
  • When an individual is considered disabled because of their relationship with a disabled person.
    • Example - If an employee’s spouse or partner is infected with HIV and the employer fears that the employee may also have become infected, the person is considered disabled by association.
  • When an employee is distracted or otherwise unable to adequately perform his or her job duties because of the disability of another.
    • Example - If an employee is somewhat inattentive at work because his or her spouse or child has a disability that requires his or her attention, the employee would be considered disabled by association. However, an employer is not obligated to provide a reasonable accommodation to a non-disabled individual simply because that person has a relationship or association with a disabled individual.

COVID-19 and disability status

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

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:

• fatigue

• difficulty concentrating

• shortness of breath

• headache

• dizziness on standing

• heart palpitations

• chest pain

• cough

• joint or muscle pain

• depression

• anxiety

• fever

• loss of taste or smell.

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.

Mitigating measures

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 exceptions are that eyeglasses and contact lenses can still be considered.

Conditions generally not considered disabilities

Determining what constitutes a disability requires an individualized, fact-specific analysis. However, certain impairments and conditions are generally not considered to be disabilities. These include:

  • current illegal drug use (includes the use of illicit drugs such as cocaine and the unlawful use of prescription drugs)
  • temporary conditions such as sprains, appendicitis, influenza, common colds, and (in some cases) temporary broken limbs
  • physical characteristics such as height, weight (other than severe obesity), eye color, or hair color that are within normal ranges
  • common personality traits, such as poor judgment or quick temper
  • most sexual behavior disorders
  • others problems such as pyromania, kleptomania, and compulsive gambling.

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.

Reasonable accommodation

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:

  • to allow an employee or job applicant to perform the essential functions of a job
  • in application and testing procedures
  • to permit an employee with a disability to enjoy privileges and benefits that are substantially equivalent to those given to non-disabled employees in similar situations  (such as access to lunch and break rooms).

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. However, the employee does not have to specifically mention the ADA or reasonable accommodation. 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:

  • accommodation would be an undue hardship
  • accommodation would pose a direct threat to the health or safety of others or the individual for whom the accommodation is made
  • the only available accommodation is to transfer the individual to a fully staffed position
  • the only available accommodation requires creating a new position for the individual (except in circumstances allowing temporary alternative work).

By contrast, under the IHRA, an employer may not be required to look for an equivalent job as a reasonable accommodation for a disabled employee who cannot perform the essential functions of his or her current position, because the IHRA defines a disability to be a condition unrelated to the employee's ability to perform his or her job duties.

Verification of need for reasonable accommodation

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 accommodations

Specific reasonable accommodations may include but are not limited to:

  • part-time or modified work scheduling
  • restructuring of non-essential job functions
  • reassignment of a disabled individual to a vacant position
  • assignment to a temporary or permanent light duty position
  • modification or acquisition of equipment or devices, which may include making existing facilities readily accessible to individuals with disabilities
  • modification of examinations, training materials, or policies
  • providing qualified readers or interpreters, but not including personal items such as glasses and hearing aids
  • providing a leave of absence.

Each request for accommodation must be analyzed on a case-by-case basis. A reasonable accommodation must always take into consideration two factors:

  1. the specific abilities and functional limitations of a particular applicant or employee with a disability
  2. the specific functional requirements and essential functions of a particular job.

Service animals as an accommodation

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:

• guiding visually impaired individuals

• pulling a wheelchair

• alerting people who are deaf

• calming individuals with Post Traumatic Stress Disorder (PTSD) during anxiety attacks

• alerting and protecting a person who is having a seizure

• reminding a person with mental illness to take prescribed medication.

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.

Employee responsibilities

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:

• harness, leash or tether the animal unless such devices interfere with the service animal’s work, or if the individual’s disability prevents him or her from using these devices

• clean up after the animal and to promptly correct disturbances the animal may cause while on the business premises (e.g., excessive barking, growling at other individuals, etc.)

• provide care to the service animal and ensure it is housebroken.

Companies are not required to provide care or food to, or clean up after, the service animal.

Accommodating others

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.

Evaluating 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:

• Determine whether the animal is a dog or miniature horse. If it is not, the business does not have to permit the animal access to the business premises.

• If the animal is a dog or miniature horse, evaluate whether the individual’s need for the service animal is obvious. If the individual’s need is obvious, the animal must be permitted access without further inquiry. For example, a dog assisting a visually impaired person with mobility around the premises must be permitted access without questioning the disabled individual’s need for an animal.

• If the individual’s need for the service animal is not obvious, the business may only ask the following two questions to determine whether the service animal must be permitted:

  • Is this animal required because of a disability?
  • What task is it trained to perform?

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:

• documentation of the individual’s disability

• certification, training or licensure documentation for the animal

• a demonstration of the animal’s ability to perform the task required by the individual.

Doing so violates the ADA.

Interactive process

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.

  1. The employer should first analyze the particular position at issue to determine its purpose and essential functions.
  2. The employer and the individual with the disability should work together to identify the barriers that exist to that individual’s performance of a particular job function. This analysis should include a review of the individual’s abilities and limitations and a determination as to which factors in the work environment or job tasks pose difficulties.
  3. The employer, working with the individual with a disability, should identify a range of possible accommodations that have the potential to remove the difficulties, either in the work environment or job tasks, and which would allow the individual to perform the essential functions of the job.
  4. Having identified various possible accommodations, the employer should assess the effectiveness of each accommodation and the preference of the individual to be accommodated and then determine whether the various accommodations would pose an undue hardship upon the employer.

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 it makes 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 or 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.

Undue hardship

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:

  • the nature and cost of the accommodation considering the availability of tax credits, deductions, and outside funding
  • the overall financial resources of the facility or facilities
  • whether the affected employer is connected with a larger organization that has additional financial resources
  • the number of employees working at a specific facility
  • the overall financial impact of the accommodation on the facility’s expenses, resources, and operation, including whether the accommodation would substantially hinder other employees in accomplishing their respective jobs
  • the company’s type of business, size, location, and other relevant geographical data
  • whether the accommodation will benefit more than one person with a disability
  • any disruption the accommodation may cause.

The determination of whether an accommodation would create an undue hardship is made on a case-by-case basis.

Direct threat to health and safety

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:

  • the duration of the risk
  • the nature and severity of the harm
  • the likelihood that the potential harm will occur
  • the imminence of potential harm.

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.

The hiring process

Pre-offer

The ADA prohibits all disability-related inquiries and medical examination 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 03: Recruiting and hiring.

Post-offer inquiries and medical examinations

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.

Post employment inquiries and medical exams

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.

Drug tests

An employer may test an applicant or employee for current illegal drug use, 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.

Use of artificial intelligence in the hiring process

On May 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) issued a “Technical Assistance” (TA) document addressing compliance with ADA requirements and agency policy when using artificial intelligence (AI) and other software to hire and assess employees. The agency also published a short “Tips for Workers” summary of this guidance. Neither of these documents has the force or effect of law, nor are they binding on employers. The guidance is meant to be educational, “so that people with disabilities know their rights and employers can take action to avoid discrimination.” There are several take-aways regarding the Commission’s likely expectations and areas of focus when regulating the use of such tools in hiring or assessing employees:

  • Accessibility: Employers should account for the fact that on-line/interactive tools may not be easily accessed or used by those with visual, auditory or other impairment.
  • Accommodation: Barring undue hardship, employers should provide alternatives to the use or application of these tools if an individual’s disability renders the use of the tool more difficult or the accuracy of the tool’s assessment less reliable.
  • Accommodation, II: Beyond providing reasonable accommodations in accessing/using these tools, employers should ensure that the tools assess an individual in the context of any reasonable accommodation they are likely to be given when performing their job.
  • ADA vs. Title VII: The EEOC stresses that disability bias requires different design and testing criteria than does Title VII discrimination, such as access considerations and the potential for inadvertent disability-related inquiries or medical examinations.
  • Promising Practices: Noting that employers are responsible for ADA-violating outcomes even when a software tool is created or used by a third-party vendor or agent, the Commission provides examples of so-called “Promising Practices” that employers can engage in to demonstrate good-faith efforts to meet ADA requirements.

The TA document uses various illustrative examples of the tools the EEOC aims to regulate. These range from résumé scanners and virtual assistants/chatbots to video-interviewing software and software that tests an individual’s personality, aptitude, skills and “perceived ‘cultural fit.’” Employers using any of these tools in their recruiting, hiring and review of applicants and employees (which, by some estimates, is up to 83% of employers) should take careful note of the EEOC’s position as to where these tools may run afoul of the ADA.

The TA document focuses broadly on three themes, specifically, how the use of algorithmic decision-making may violate the ADA with respect to: (1) reasonable accommodation for applicants and employees; (2) where AI decision-making tools may “screen out” individuals with disabilities; and (3) where an AI-based tool may violate ADA restrictions on disability-related inquiries. You can access the document online in its entirety at:

Medical records

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:

  • managers and supervisors when the information is necessary for reasonable accommodation purposes
  • first-aid and safety personnel in the event that emergency treatment is necessary
  • state or federal government offices during an investigation for compliance with the ADA
  • insurance purposes.

Substance abuse

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 a drug addict who fulfills both of the following requirements:

  1. is not currently using drugs
  2. has been rehabilitated, because of history of drug addiction.

The ADA states that it should not be interpreted to exclude a qualified individual who has met at least one of the following requirements:

  • has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use
  • is participating in a supervised rehabilitation program and is no longer engaging in such use
  • is incorrectly regarded as engaging in such use, but is not.

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.

Food handling positions

The ADA requires the Department of Health and Human Services 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.

Illinois state law

As noted, the Illinois Human Rights Act (IHRA) defines the term “disability” as a determinable physical or mental characteristic of a person that is unrelated to the person’s ability to perform the duties of a particular job or position. A disability can be any physical or mental condition or characteristic resulting from a disease, injury, functional disorder or a condition of birth. A condition is not considered a disability under the IHRA if the condition is not significantly debilitating or disfiguring. The IHRA covers individuals who:

  • have such a handicap
  • have a history of such a handicap
  • are thought to have such a handicap and suffer discrimination as a result of this perception.

Like the ADA, the IHRA prohibits employers from discriminating against qualified individuals based on handicap.

The IHRA requires employers to make reasonable accommodation of the known physical or mental limitations of otherwise qualified disabled applicants or employees, unless the employer can demonstrate that such accommodation would be prohibitively expensive or would unduly disrupt the ordinary conduct of business. Accommodations of a personal nature (eyeglasses, hearing aids, etc.) need not be provided, nor is it necessary to provide any superfluous accommodation (providing a chauffeur to accommodate a blind person’s traveling difficulties). Like the ADA, the IHRA also does not require an employer to hire two full-time employees to perform one job in order to accommodate the handicapped worker.

Under the IHRA, it is the individual employee or applicant’s duty to notify the employer of his or her disabling condition and to provide any necessary medical documentation. The disabled individual must ordinarily initiate the request for accommodation. However, under the ADA, the employer may have a duty to initiate the process of determining a reasonable accommodation if the employer has reason to believe the individual may be limited in his performance of the job in question due to disability. In either case, the employee must cooperate in any ensuing process aimed at determining the possible or feasible accommodations.

Under the IHRA, alcoholism, drug addiction and obesity may qualify as a covered disability if medically documented as being the result of a functional disorder or disease. The law specifically excludes, however, illegal drug use as a covered disability. Finally, the law covers individuals diagnosed with AIDS or the HIV virus, meaning that employers must make reasonable accommodation for someone with AIDS or HIV the same as they would for any other person with a covered disability.