The Ticktin Law Minute January 1, 2018 – Identifying Who is Protected by the Americans with Disabilities Act (“ADA”)

Identifying Who is Protected by the Americans with Disabilities Act (“ADA”)

Having a disability alone is not enough to qualify for protection under the Americans with Disabilities Act (“ADA”). A person with a disability must be able and qualified to perform the essential functions of the job that they are applying for (or hired for) with or without a reasonable accommodation. In other words, not everyone with a disability can be qualified to work for any position. An employer must identify whether an individual meets the essential functions of a job. In order to do this, the employer must have a written position description that outlines the “essential functions” and the “marginal functions” of a job.

Functions can be considered essential can be determined in the best judgement of the employer, however, they should be written in a job description to be compliant with the Americans with Disabilities Act. A written job description should not be the only evidence. Such job description should be prepared well before interviewing prospective candidates for a new available position. The amount of time an individual spends on performing a function is also important in determining whether that function is essential. Further, if a particular function has severe consequences if not completed, then it may be considered essential even though not required to be done frequently.

For example, if a job advertisement states that the position is for a secretary, it is more than less likely that typing on a computer would be considered an essential function of the job. Another example may involve a position available for someone who is fluent in a second language in order to promote diversity in the community. Speaking a second language would be considered an “essential” function of this particular position.

If you or someone you know has a potential employment law claim and/or questions regarding your rights, contact the attorneys of The Ticktin Law Group for a complimentary consultation.