Americans with Disabilities Act
The Americans with Disabilities Act (ADA)1 is a federal law, which was passed in 1990, that prohibits discrimination against qualified employees with disabilities.
To use the ADA’s protections, you must be a qualified individual, which means that you can perform the essential functions of the job with or without a reasonable accommodation. According to the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing the ADA, you should look at the following factors to determine if a job function is essential:
- The reason the position exists is to perform that function.
- How many other employees are available to perform the function or among whom the performance of the function can be distributed?
- The degree of expertise or skill required to perform the function.2
- Be a qualified individual.
- Work for private employer with fifteen or more employees or state or local government.
- Have a disability.
You also must work for a private employer with fifteen or more employees (or a state or local government of any size)3 and have a disability as defined by the ADA.
Under the ADA, a disability is a physical or mental impairment that substantially limits a major life activity. When dealing with cancer, oftentimes it is not the cancer itself that creates the disability but rather the side effects of the treatment (e.g., nausea, cognitive difficulties, fatigue, neuropathy, and/or depression).
A major life activity is anything that the average person in the general population can perform with little or no difficulty. For example, walking, talking, breathing, eating, sleeping, thinking, communicating, and operations of major bodily functions are all considered major life activities.
Under the ADA’s definition of a disability, the limitation to a major life activity must be substantial. To determine if your limitation is substantial, consider the following:
- The nature and the severity of the disability
- The duration (or expected duration) of the disability
- The permanent or long-term impact of the disability
The ADA applies to all phases of employment, including hiring, firing, applications, leave, reinstatement, promotions, testing and trainings, compensation, and benefits.4 This means that both job applicants and employees are protected.
After you have determined that you are protected under the ADA, there are four ways to use those protections:
- You currently have a physical or mental impairment that substantially limits a major life activity. For example, you are currently going through chemotherapy after your mastectomy and are suffering from extreme nausea that makes getting through a workday without vomiting impossible.
- You have a history of having a disability. For example, you are a cancer survivor with no current limitations, but a potential employer is refusing to hire you because the employer is afraid you will have a reoccurrence.
- You are regarded as having a disability. For example, you are going through treatment but are not experiencing any major side effects except hair loss, but your employer is treating you differently because the employer perceives that you to have a disability.
- You have an association with a person with a disability. For example, you are the primary caregiver to your mother who is battling breast cancer, and your employer is refusing to promote you because of your caregiver role.
Four Ways to Use ADA
- Regarded as
- Association with
In all of these circumstances, the ADA protects you against discrimination in the workplace.
If you currently have a disability under the ADA or a history of having a disability, in addition to being protected from discrimination, you also are entitled to a reasonable accommodation. A reasonable accommodation is “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” Some practical examples of reasonable accommodations include the following:
- Changing your work schedule (e.g., working from home, part or full time; flexible scheduling, schedule breaks, or extended leave)
- Using technology (e.g., a tape recorder or a smartphone)
- Changing your physical work environment (e.g., moving your desk location closer to the elevator)
- Changing workplace policy (e.g., allowing additional rest periods)
- Shifting job responsibilities
- Changing your job (e.g., moving to a vacant position)
Reasonable accommodations will depend on your disability and your job. If you are unsure of what reasonable accommodations may work for your situation, contact the Job Accommodation Network (JAN), which is a program of the U.S. Department of Labor. JAN also has a Searchable Online Accommodation Resource (SOAR) system that allows people to explore various accommodation options for people with different types of medical conditions in particular workplace settings.
Does an employer have to provide a reasonable accommodation?
Almost always if the employer is subject to the ADA (i.e., has 15 or more employees). The exception to that rule is if providing a reasonable accommodation for a person with a disability unless it would cause the employer an undue hardship. To be considered an undue hardship on the employer, the accommodation must require significant difficulty or expense for the employer.
How do I go about asking for a reasonable accommodation?
You may ask your supervisor, another superior, or a human resources representative for a reasonable accommodation. You do not have to specifically mention the ADA or use the words reasonable accommodation. In addition, the request does not need to be in writing, but it is a good idea to document in writing any agreed-on reasonable accommodations. Although you must say that you are requesting this change in work environment/policy/schedule as a result of a medical condition, you do not need to disclose the exact nature of that condition (e.g., you don’t necessarily have to tell your employer that you have been diagnosed with cancer) if you can provide sufficient information that describes the nature and the duration of the impairment, the activity the impairment limits, and why you need a reasonable accommodation. If you are concerned about disclosing your diagnosis, talk with your health-care team when you ask them to complete your medical certification paperwork for your employer. Tell them that you do not want your diagnosis included in the description of why you need an accommodation. Sometimes, information about symptoms you are experiencing is enough if it shows why you need the accommodation you are requesting.
You can request a reasonable accommodation during the application process, when looking for a new job, or at any point during your employment. However, it may be in your best interests to ask for a reasonable accommodation as soon as a problem or an issue becomes known—before your work performance suffers.
If you have questions about the ADA or reasonable accommodations, see www.eeoc.gov/policy/ada.html.
Illinois Human Rights Act
The Illinois Human Rights Act (IHRA)5 is the state version of the ADA. It prohibits discrimination in all employment practices against qualified individuals with disabilities who can perform the essential functions of the job, with or without reasonable accommodations. The IHRA applies to all private employers with one or more employees and state or local governments of any size. Therefore, individuals who work for small businesses with less than 15 employees, who are not covered under the ADA, are protected by the IHRA. It is important to know which law you are protected under for the complaint process. Under the IHRA, the definition of a disability is a “determinable physical or mental characteristic of a person which may result from disease, injury, congenital condition of birth or a function or disorder.” The requirements for reasonable accommodations are the same as under the ADA.
What information is my employer entitled to about my medical condition when I am asking for a reasonable accommodation?
Generally, you are not required to share information about your medical condition with an employer or a potential employer. However, if you ask for a reasonable accommodation your employer has the right to ask you for medical certification that you do indeed have a disability under the ADA or state fair employment law (i.e., IHRA).
It is important to communicate with your health-care team if you want to keep your exact diagnosis confidential from your employer because medical certification forms may request information that will disclose your diagnosis. For example, there may be a space for your doctor to write in your diagnosis or it may just have a space for your doctor’s medical specialty. If your health care team does not know about your wishes, they may inadvertently disclose information. Please keep in mind that employers are not permitted to ask for copies of your medical records or put your medical information in your employee file.
There may be limited instances when your employer may contact your health-care provider. Under the ADA, your employer may contact your health-care provider but only with your express permission. Triage Cancer has created a medical certification chart that outlines what is and is not permissible for medical certification forms under the ADA and the FMLA.
1 42 U.S.C. § 12101, et seq.
3 Federal employees are covered by the Rehabilitation Act of 1973, which is very similar to ADA.
4 42 U.S.C. §12112(a)
5 775 ILSC 5/2