On July 26, 1990, President George H. W. Bush signed into law the American with Disabilities Act (ADA). This law was a huge leap forward in helping the people of the United States facing mobility and other disabling conditions conquer many of the barriers we face in everyday life.
In this article, we shall examine together the ADA, the ADAAA and how these laws impact your ability to work if you have a mental health disorder.
The Provisions of the ADA
The Americans with Disability Act prohibits discrimination against people living with a disability. In effect, it is a civil rights law opening opportunities for people with disabilities to have the same rights as anyone else. The ADA dictates to businesses, schools and any other public or private place that they must make changes to accommodate disabilities.
The ADA guarantees equal opportunity to people living with a disability, by requiring accommodation geared to meet their needs in public, state, and federal services.
The coverage and explanations of the ADA reside in five titles (coverage) areas:
Employment, public services, public accommodations, telecommunications and miscellaneous.
In Title I are eight sections including the definition of disability, and the definition of reasonable accommodation.
According to Title I, the definition of a disabled person is someone with impairments of major life activities or has a record of such impairment.
Title II covers public services provided by state and local governments. These entities must offer accommodations on the rails, bus, and other public transportation services. Title II also states that state and local governments may not deny participation in programs and activities to a person with a disability that is available to the non-disabled.
Title III is a life-changing part of the ADA for those of us in wheelchairs. Title III requires all newly constructed public buildings to offer accommodations for those with limited mobility to remove barriers such as elevators.
Title IV addresses barriers to telecommunications. It requires any company offering telephone services to the public to utilize a telephone relay service. This includes text telephone (TTY) and other communications devices.
Title V covers items not covered in the previous sections. The accommodations in this section include information regarding a prohibition against retaliation and coercion.
This means that an employer may not retaliate against an employee who files a complaint against an employer for failing to make reasonable accommodations.
However, these prohibitions also allow employers who are attempting to comply with the ADA regulations but have not done so due to the costs involved. Employers will not receive discrimination, interference, or intimidation for not yet totally complying with the law by anyone, including a disabled employee. (More on this later.)
The Americans with Disabilities Act Amendments Act (ADAAA)
While the American with Disabilities Act removed some barriers for physical disabilities, within the following years, supreme court rulings required an amendment to cover mental health issues.
In January 2008, George W. Bush signed into the law the Americans with Disabilities Act Amendment Act (ADAAA) and the law required changes as of January 1, 2009.
The ADAAA made significant changes to the definition of “disability.” Although the Americans with Disabilities Act Amendment became law in 2009, it took two years for the writing of the rules and regulations by the U.S. Equal Employment Opportunity Commission (EEOC) before the final regulations received approval by Congress on March 25, 2011.
The ADAAA establishes protection for any disability by amending the definition of what constitutes one. Under the ADAAA a disability is “a physical or mental impairment that substantially limits one or more major life activities.” The new definition even goes further establishing persons with a record or history of the limitations as disabled.
This new definition of disability meant that any individual having an impairment, such as cancer, diabetes, epilepsy, or a mental health condition received coverage under the ADA.
The ADAAA does not require medical proof of a disability for a person to receive the dignity and respect all people deserve, and it opens the door for those with disabilities to equal rights to employment.
Your Rights Under the ADAAA
One of the reasons people living with a mental health condition often avoid looking for work is the fear they will receive rejection after an employer discovers they have one. However, if that employer has more than fifteen employees, they cannot reject or fire you for having a mental health problem.
It is now against the law.
The ADA and later the ADAAA, require employers to make reasonable accommodations by modifying or adjusting the work environment if an employee meets the broad definition of having a disability.
There are certain things an employer cannot ask you as pertaining to your disability.
First, when applying for a job, an employer cannot ask if you have a disability or the nature of your disability. However, they can ask if you can perform the duties of the job with or without reasonable accommodation. They may then ask how you would perform the job you are applying for with or without accommodation.
Second, an employer cannot require you to have a medical examination before offering you a position. However, once hired, and if a medical examination is a requirement for that position, such as a nurse, then your employer can request you have one.
Third, after the required examination, the employer may not fire you because of information obtained during the required examination unless it is necessary for the safety and effectiveness of the job.
However, if in the examination you are found to have a condition that prohibits you from performing the position you were hired to do with or without accommodations, you can receive termination of your employment.
Fourth, once hired, an employer may not ask about your disability unless it is directly related to the conduct of the position unless required by State worker’s compensation laws. This does not include random drug testing.
Finally, if your employer requires you to take a medical examination, the results must receive confidential treatment and maintenance in separate medical files.
If you believe your employer has violated your rights, you should contact the U.S. Equal Employment Commission and file a complaint within 180 days of the event. However, if the problem is with a state or local employer, you may have up to 300 days to a make a charge to the EOCC in one of their offices scattered throughout the United States.
Should the ruling show you received discrimination, you may receive hiring, promotion, reinstatement, back pay, reasonable accommodation, and attorney’s fees from the discriminatory employer.
However, the EEOC will require both the employer and filer of the complaint to explore other options besides penalization through thoughtful mediation to find a reasonable solution for both.
By law, an employer may not retaliate against you if you file a complaint.
What does the ADA or the ADAAA Mean for You?
Protections by the ADA and later the ADAAA allow you and me who live with cerebral health disorders to go successfully into the workforce without fear. Not only will you receive the respect and dignity afforded every human being, but also employers by law have the requirement to reasonably accommodate any special needs you might have.
However, the ADAAA also protects employers in two ways:
First, to receive employment, you will first need to meet the qualifications of the job just like anyone else. For instance, if you cannot type the rate required by the position of anyone applying, then you are not qualified regardless of a disability or lack thereof, or if you want to work as a nurse in a doctor’s office, you must have the correct license, and so forth.
Second, you must show you possess the essential functions required for the position by showing an ability to perform the job with or without reasonable accommodation. However, an employer cannot refuse to hire, and they cannot fire you if your disability prevents you from performing duties that are not essential to the position.
The reasonable accommodations required by law for employers to make when hiring someone with a disability include:
Providing or modifying equipment or devices
Reassignment to a vacant position
Adjusting or modifying examinations, training materials or policies
Part-time or modified work schedules
Providing readers and interpreters
Making the workspace easily accessible to and usable by people with disabilities
For instance, regarding a mental health problem; if you have difficulty working in loud environments like in an open office environment due to an anxiety disorder or ADHD, a reasonable accommodation might include allowing you to work in a private office or on your own at home.
However, if the costs of providing the needed accommodation is an undue hardship on an employer, the employee has two choices. First, pay for the accommodations yourself or pay a portion of the accommodation cost that is causing undue hardship to your employer.
Pulling it All Together
Working is beneficial to those who live with mental health challenges. It offers opportunities to meet new people, socialize, and earn an income. However, many do not seek employment because of the fear of discrimination.
Knowing your rights as a person living with a disability helps all of us who want to work to do so. Knowledge of your rights allows you to go confidently into an interview knowing exactly where you stand in the law and what an employer can and cannot ask you.
Also, knowing what your employer must do to accommodate your needs helps us to weigh the pros and cons of that position with a more honest self-assessment of what we can and cannot do. If the job requires you to do something you cannot do with or without reasonable accommodation, then knowing what the ADA and ADAAA says will save you embarrassment by having an employer fire you because you cannot do the job.