By Bich-Quyen Nguyen, JD

When Are You Protected Under the Americans with Disabilities Act?

Bich-Quyen Nguyen is a staff counsel at the American Nurses Association.

Q. I have been injured and now can only perform certain functions at my job. Am I protected by the Americans with Disabilities Act (ADA)?

A. Title I of the ADA, enacted in 1990, protects people with disabilities from employment discrimination, including in application and hiring processes, promotions and training procedures, compensation, and other terms and conditions of employment. Employers with 15 or more employees must comply with the ADA.

To be protected under the ADA, you must be “a person with a disability who meets the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job.” A disability, as defined by the ADA, is a physical or mental impairment that substantially limits one or more major life activities. A physical impairment can be any physiologic disorder or condition, a cosmetic disfigurement (such as scarred or burned skin), or an anatomical loss affecting one or more of the following systems: neurologic, musculoskeletal, sensory organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, endocrine, and the skin. A mental impairment is any mental or psychological disorder, such as a developmental disability, an organic brain syndrome, an emotional or mental illness, and a specific learning disability. Major life activities are those that a person with no disability can perform with little difficulty, such as walking, speaking, breathing, learning, hearing, or seeing. Other examples may include, but are not limited to, sitting, standing, lifting, and reading.

Even if you are not limited in a major life activity, you are protected under the ADA if you have a record of a disability. You may also be protected if you don’t have a substantially limiting impairment but others believe you do. For example, an employee is denied a position because of high blood pressure; the employer has assumed that this is a disability.

An employer is not required to hire or retain someone who isn’t qualified to perform a job. To be qualified, you must satisfy the necessary requirements of the job, which may include education, work experience, training, skills, licenses, and certificates, among others. For instance, a nurse who has cerebral palsy may not be qualified for a staff nursing position if she doesn’t have a state license the position requires.

If you have a disability, you must also be able to perform the essential functions of the job with or without reasonable accommodation in order to be considered qualified. An essential function is one that you are required to perform in a particular position and that, if eliminated, would fundamentally change the job. The ADA lists the various types of evidence that can be considered when determining the essential functions of a job, including but not limited to the employer’s judgment, a written job description, the amount of time spent performing the functions, and the experience of other employees holding the same position. The essential responsibilities of most nursing positions should involve knowledge and training, and should not be limited to manual tasks or the ability to work 12-hour or rotating shifts.

And what is “reasonable accommodation”? It’s a modification of the job’s environment, schedule, or procedures that affords a qualified person with a disability an opportunity to attain the same level of performance as a similarly situated employee without a disability, and to enjoy equal benefits and privileges. Examples of reasonable accommodations include making the facility readily accessible; altering when or how an essential job function is performed; changing a job by reassigning or redistributing marginal job functions; offering a part-time or modified schedule; obtaining or modifying equipment or devices; reassigning to a vacant position; and allowing the employee with a disability to provide equipment or devices that the employer isn’t required to provide.

Your employer has the right to hire the most qualified person for the job, regardless of the ADA-defined disability of the applicant. The employer also has the right and the responsibility to find an accommodation that will enable you to perform the essential tasks of your job without disrupting the workplace, placing an unfair burden on your colleagues, posing a direct threat to the health and safety of others, or imposing undue hardship on the employer.

If you believe you have been discriminated against because of a disability, you can file a complaint with the Equal Employment Opportunity Commission (EEOC) at any field office. Call (800) 669-4000 to find a local EEOC field office or go to <http://www.eeoc.gov> for more information. Generally, a complaint must be filed within 180 days of the alleged violation. If it is found that you have been discriminated against, you may be entitled to the position you would have obtained if the discriminatory practices hadn’t occurred. You may also receive back pay and reimbursement of attorney’s fees.