Labor & Employment law - Employers only

Law Office of David Miklas, P.A.

The Americans with Disabilities Act (ADA)

The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability. Job discrimination against people with disabilities is illegal if practiced by:

• Florida private employers,
  
• Florida state and local governments,
  
• Florida employment agencies,
  
• labor organizations, and
  
• labor-management committees.
  

The part of the ADA enforced by the U.S. Equal Employment Opportunity Commission (EEOC) outlaws job discrimination by all Florida employers, including Florida State and local government employers, with 15 or more employees. Another part of the ADA, enforced by the U.S. Department of Justice, prohibits discrimination in Florida State and local government programs and activities, including discrimination by all Florida State and local governments, regardless of the number of employees.

What Employment Practices are Covered?

The ADA makes it unlawful to discriminate in all employment practices such as:

• recruitment
  
• pay
  
• hiring
  
• firing
  
• promotion
  
• job assignments
  
• training
  
• leave
  
• lay-off
  
• benefits
  
• all other employment related activities.
  

The ADA prohibits a Florida employer from retaliating against an applicant or employee for asserting his rights under the ADA. The ADA also makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the individual's family, business, social or other relationship or association with an individual with a disability.

Who Is Protected?

Title I of the ADA protects qualified individuals with disabilities from employment discrimination. Under the ADA, a person has a disability if he has a physical or mental impairment that substantially limits a major life activity. The ADA also protects individuals who have a record of a substantially limiting impairment, and people who are regarded as having a substantially limiting impairment.

To be protected under the ADA, an individual must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning or working.

An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation, in order to be protected by the ADA. This means that the applicant or employee must:

• satisfy your job requirements for educational background, employment experience, skills, licenses, and any other qualification standards that are job related; and
  
• be able to perform those tasks that are essential to the job, with or without reasonable accommodation.
  

The ADA does not interfere with your right to hire the best qualified applicant. Nor does the ADA impose any affirmative action obligations. The ADA simply prohibits Florida employers from discriminating against a qualified applicant or employee because of her disability.

How Are Essential Functions Determined?

Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. Florida businesses should carefully examine each job to determine which functions or tasks are essential to performance. (This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing).  The Law Office of David Miklas, P.A. recommends that you seek legal counsel to assist you in determining whether an employee/applicant is able to perform the essential functions of a position.

Factors to consider in determining if a function is essential include:

• whether the reason the position exists is to perform that function,
  
• the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
  
• the degree of expertise or skill required to perform the function.
  

Your judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered by the EEOC and courts as evidence of essential functions. Other kinds of evidence that the EEOC and courts will consider include:

• the actual work experience of present or past employees in the job,
  
• the time spent performing a function,
  
• the consequences of not requiring that an employee perform a function, and
  
• the terms of a collective bargaining agreement.

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