Frequently Asked Questions

When is overtime due?

For covered, nonexempt employees, the FLSA requires overtime pay at a rate of not less than one and one-half times an employee’s regular rate of pay after 40 hours of work in a workweek.   Some exceptions to the 40 hours per week standard apply under special circumstances to police officers and firefighters employed by public agencies and to employees of hospitals and nursing homes.

Some states also have enacted overtime laws.  Where an employee is subject to both the state and federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher rate of pay).

When must breaks and meal periods be given?

Federal law does not require that breaks or meal periods be given to workers.  Some states may have requirements for breaks or meal periods.   If you work in a state which does not require breaks or meal periods, these benefits are a matter of agreement between the employer and the employee (or the employee’s representative).

What notices must be given before an employee is terminated or laid off?

Federal law has no requirements for notice to an employee prior to termination or lay-off.  In certain cases, employers must give the workers advanced notice of mass layoffs or plant closure.  The Worker Adjustment and Retraining Notification Act (WARN) helps ensure advance notice in cases of qualified plant closings and mass layoffs.  Some states may have requirements for employee notification prior to termination or lay-off.

How many hours per day or per week can an employee work?

Federal law does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.

How are vacation pay, sick pay, and holiday pay computed and when are they due?

Federal law does not require payment for time not worked, such as vacations, sick leave or holidays.  These benefits are a matter of agreement between an employer and an employee (or the employee’s representative).

What is the minimum wage?

The federal minimum wage for covered nonexempt employees is $5.85 per hour.   Many states also have minimum wage laws.  Where an employee is subject to both the state and federal minimum wage laws, the employee is entitled to the higher of the two minimum wages.   Various minimum wage exceptions apply under specific circumstances to workers with disabilities, full-time students, youth under age 20 in their first 90 consecutive calendar days of employment, tipped employees and student-learners.

On May 25, 2007, President George W.  Bush signed a spending bill that, among other things, amended the FLSA to increase the federal minimum wage in three steps: to $5.85 per hour effective July 24, 2007; to $6.55 per hour effective July 24, 2008; and to $7.25 per hour effective July 24, 2009.

How many hours is full-time employment? How many hours is part-time employment?

Federal law does not define full-time employment or part-time employment.  This is a matter generally to be determined by the employer.  Whether an employee is considered full-time or part-time does not change the application of the FLSA.

What is the minimum wage for workers who receive tips?

The FLSA sets a federal minimum wage of $5.85 per hour effective July 24, 2007 for covered, nonexempt employees.  An employer of a tipped employee is only required to pay $2.13 an hour in direct wages if:

  • that amount plus the tips received equals at least the federal minimum wage;
  • the employee retains all tips and the employee customarily
  • and regularly receives more than $30 a month in tips.  If an employee’s tips combined with the employer’s direct wages of at least $2.13 an hour do not equal the federal minimum hourly wage, the employer must make up the difference.

Is extra pay required for weekend or night work?

Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee’s representative).  Federal law does not require extra pay for weekend or night work.  However, the FLSA does require that covered, nonexempt workers be paid not less than time and one-half the employee’s regular rate for time worked over 40 hours in a workweek.

I recently accepted a job as a computer software engineer at a higher salary than my previous job.  My employer says that I am not entitled to overtime pay.  Is this correct? The FLSA was amended in 1996 to exempt from overtime certain highly-skilled computer professionals who are paid at least $27.63 per hour, and who meet specific duty requirements of the FLSA.

What hours can young people (under 18) work?

Under the FLSA, the minimum age for employment in non-agricultural employment is 14.   Hours worked by 14- and 15-year-olds are limited to:

  • Non-school hours;
  • 3 hours in a school day;
  • 18 hours in a school week;
  • 8 hours on a non-school day;
  • 40 hours on a non-school week; and
  • Hours between 7 a.m.  and 7 p.m.  (except from June 1 through Labor Day, when evening hours are extended to 9 p.m.)

Youth 14 and 15 years old enrolled in an approved Work Experience and Career Exploration Program (WECEP) may be employed for up to 23 hours in school weeks and 3 hours on school days (including during school hours).  The FLSA does not limit the number of hours or times of day for workers 16 years and older.

Many states have enacted child labor laws as well.  In situations where both the FLSA child labor provisions and state child labor laws apply, the higher minimum standard must be obeyed.

What is the youngest age at which a person can be employed?

The FLSA sets the age of14 as the minimum age for most non-agricultural work.  However, at any age, youth may deliver newspapers; perform in radio, television, movie, or theatrical productions; work in businesses owned by their parents (except in mining, manufacturing or hazardous jobs); and perform babysitting or perform minor chores around a private home.   Different age requirements apply to the employment of youth in agriculture.

When can an employee’s scheduled hours of work be changed?

Federal law has no provisions regarding the scheduling of employees, with the exception of certain child labor provisions.   Therefore, an employer may change an employee’s work hours without giving prior notice or obtaining the employee’s consent (unless otherwise subject to a prior agreement between the employer and employee or the employee’s representative).

I didn’t get my last paycheck.   What can I do?

Employers are not required by federal law to give former employees their final paycheck immediately.  Some states, however, may require immediate payment.  If the regular payday for the last pay period an employee worked has passed and the employee has not been paid, contact the Department of Labor’s Wage and Hour Division.

What is the Family and Medical Leave Act?

The Family and Medical Leave Act (“FMLA”) provides certain employees with up to 12 workweeks of unpaid, job-protected leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave.

I am having a baby and want to take some time off from work after the baby’s birth.  How much time am I entitled to take?

The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave each year with continued group health insurance coverage during the leave for specified family and medical reasons, including the birth or adoption of a child, or placement of foster children.

The first step is to determine if your employer is covered under the Act.  The Act covers private employers who employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.  Public agencies, as well as public elementary and secondary schools, are covered employers regardless of the number of employees.

The next step is to determine your eligibility under the Act.  To be eligible, you must have worked for your employer for at least 12 months, have worked at least 1250 hours during the past 12 months, and work at a location where your employer employs at least 50 employees at the site or within 75 miles of the site.  The 12 months you are required to have worked for your employer do not have to be consecutive.

I just found out that I am pregnant.   Can my employer fire me or reassign me?

Under the Civil Rights Act of 1964 an employer with 15 or more employees can not fire you because you are pregnant, and must permit you to continue working as long as you are able.  Some states have laws that cover employers with less than 15 employees.

Do I get paid while on jury duty?

Employers are not required by federal law to pay employees for time not worked, including jury duty.  This type of benefit is generally a matter of agreement between an employer and an employee (or the employee’s representative).

Must employers grant leave to employees called up by the National Guard or Reserve?

Yes, an employee must be granted a leave of absence to perform military service.

Where can I go for assistance concerning my employment and reemployment rights as a veteran or member of the Guard or Reserve?

Employment and reemployment rights for veterans and reservists are provided by the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The Department of Labor’s Veterans’ Employment and Training Service (VETS) administers and enforces USERRA.  You should contact your local VETS office for help.  You can receive USERRA information from VETS or file a complaint if you believe your rights have been violated.  Another resource for National Guard and Reserve members is the National Committee for Employer Support of the Guard and Reserve, an organization within the Department of Defense that can provide information and informal mediation services.

What are the basic reemployment rights when an employee returns following military service?

The employer must promptly reemploy the service member.  “Promptly” means within days, not months.  Generally the reemployment position should be the one the person would have attained had he or she remained continuously employed during the period of military service.

Does the Uniformed Service Employment and Reemployment Act (USERRA) apply to very small employers?

USERRA applies to all public and private employers in the United States, regardless of size.  It also applies in overseas workplaces that are owned or controlled by U.S.  employers.

Is an employer required to pay an employee while the employee is on military duty? While many employers take the commendable step of providing all or part of employees’ pay while they perform military service, there is no obligation under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for them to do so.

Can an employer require an employee to produce military orders before granting a military leave of absence?

No.  The Uniformed Services Employment and Reemployment Rights Act (USSERA) requires that an employee or a responsible military official provide advance notice to the employer of military service.  The notice may be verbal or written.  Notice is not required if the giving of notice is precluded by military necessity or is otherwise impossible or unreasonable.

Must an employee’s job be kept open while the employee is on military duty?

Employers are permitted to hire persons to occupy a position vacated by an employee on active duty.  However, the returning employee is entitled to reemployment upon completion of the military service, even if it requires termination of the replacement.

What is COBRA continuation health coverage?

Congress passed the landmark Consolidated Omnibus Budget Reconciliation Act (COBRA) health benefit provisions in 1986.  The law amends the Employee Retirement Income Security Act, the Internal Revenue Code and the Public Health Service Act to provide continuation of group health coverage that otherwise might be terminated.

What does COBRA do

COBRA provides certain former employees, retirees, spouses former spouses, and dependent children the right to temporary continuation of health coverage at group rates.  This coverage, however, is only available when coverage is lost due to certain specific events.  Group health coverage for COBRA participants is usually more expensive than health coverage for active employees, since usually the employer pays a part of the premium for active employees while COBRA participants generally pay the entire premium themselves.  It is ordinarily less expensive, though, than individual health coverage

Who is entitled to benefits under the Consolidated Omnibus Budget Reconciliation Act (COBRA)?

There are three elements to qualifying for COBRA benefits.  COBRA establishes specific criteria for plans, qualified beneficiaries, and qualifying events:

Plan Coverage: Group health plans for employers with 20 or more employees on more than 50 percent of its typical business days in the previous calendar year are subject to COBRA.   Both full and part-time employees are counted to determine whether a plan is subject to COBRA.  Each part-time employee counts as a fraction of an employee, with the fraction equal to the number of hours that the part-time employee worked divided by the hours an employee must work to be considered full-time.

Qualified Beneficiaries: A qualified beneficiary generally is an individual covered by a group health plan on the day before a qualifying event who is either an employee, the employee’s spouse, or an employee’s dependent child.   In certain cases, a retired employee, the retired employee’s spouse, and the retired employee’s dependent children may be qualified beneficiaries.  In addition, any child born to or placed for adoption with a covered employee during the period of COBRA coverage is considered a qualified beneficiary.  Agents, independent contractors, and directors who participate in the group health plan may also be qualified beneficiaries.

Qualifying Events: Qualifying events are certain events that would cause an individual to lose health coverage.  The type of qualifying event will determine who the qualified beneficiaries are and the amount of time that a plan must offer the health coverage to them under COBRA.  A plan, at its discretion, may provide longer periods of continuation coverage.

Qualifying Events for Employees include the voluntary or involuntary termination of employment for reasons other than gross misconduct and/or reduction in the number of hours of employment.

Qualifying Events for Spouses include:

  • Voluntary or involuntary termination of the covered employee’s employment for any reason other than gross misconduct;
  • Reduction in the hours worked by the covered employee;
  • Covered employee’s becoming entitled to Medicare;
  • Divorce or legal separation of the covered employee; and
  • Death of the covered employee

Who pays for COBRA coverage?

Beneficiaries may be required to pay for COBRA coverage.   The premium cannot exceed 102 percent of the cost to the plan for similarly situated individuals who have not incurred a qualifying event, including both the portion paid by employees and any portion paid by the employer before the qualifying event, plus 2 percent for administrative costs.  For qualified beneficiaries receiving the 11 month disability extension of coverage, the premium for those additional months may be increased to 150 percent of the plan’s total cost of coverage.

COBRA premiums may be increased if the costs to the plan increase but generally must be fixed in advance of each 12-month premium cycle.  The plan must allow qualified beneficiaries to pay premiums on a monthly basis if they ask to do so, and the plan may allow them to make payments at other intervals (weekly or quarterly).

The initial premium payment must be made within 45 days after the date of the COBRA election by the qualified beneficiary.  Payment generally must cover the period of coverage from the date of COBRA election retroactive to the date of the loss of coverage due to the qualifying event.  Premiums for successive periods of coverage are due on the date stated in the plan with a minimum 30-day grace period for payments.  Payment is considered to be made on the date it is sent to the plan.

If premiums are not paid by the first day of the period of coverage, the plan has the option to cancel coverage until payment is received and then reinstate coverage retroactively to the beginning of the period of coverage.  COBRA beneficiaries remain subject to the rules of the plan and therefore must satisfy all costs related to co-payments and deductibles, and are subject to catastrophic and other benefit limits.

What is ERISA?

The Employee Retirement Income Security Act of 1974, or ERISA, protects the assets of millions of Americans so that funds placed in retirement plans during their working lives will be there when they retire.  ERISA is a federal law that sets minimum standards for pension plans in private industry.  For example, if an employer maintains a pension plan, ERISA specifies when an employee must be allowed to become a participant, how long they have to work before they have an interest in their pension that can not be forfeited, how long a participant can be away from their job before it might affect their benefit, and whether their spouse has a right to part of their pension in the event of their death.  ERISA does not require any employer to establish a pension plan.  It only requires that those who establish plans must meet certain minimum standards.  The law generally does not specify how much money a participant must be paid as a benefit.

Who is responsible for handling private pension plan complaints?

The U.S. Department of Labor’s Pension and Welfare Benefits Administration is responsible for regulating private pension plans.

What is worker’s compensation?

For most kinds of employment, state workers’ compensation statutes govern compensation for injuries.  The statutes provide that the injured employee is entitled to compensation for accidents occurring in the course of employment.  Every State has some form of workers’ compensation legislation.  The statutes vary widely from State to State.  When an employee is covered by a workers’ compensa­tion statute, and when the injury is job connected, the employee’s remedy is limited to what is provided in the worker’s compensation statute.  In other words, the employee cannot sue his employer for negligence.  Generally, no compensation is allowed for a willful, self-inflicted, injury, or one sustained while the employee is intoxicated.

Who is responsible for handling Workers’ Compensation complaints?

The U.S. Department of Labor’s Office of Workers’ Compensation Programs is responsible for regulating workers’ compensation issues involving federal workers.  All other complaints are handled by the particular state involved.

What are employers’ responsibilities under the Occupational Safety and Health Act (OSHA)?

The Occupational Safety and Health Act requires employers to provide a safe and healthful workplace free of recognized hazards and to follow OSHA standards.  Employers’ responsibilities also include providing training, medical examinations and recordkeeping.

What is an Occupational Safety and Health Administration (OSHA) standard?

OSHA issues standards or rules to protect workers against many hazards on the job.  These standards limit the amount of hazardous chemicals workers can be exposed to, require the use of certain safety practices and equipment, and require employers to monitor hazards and maintain records of workplace injuries and illnesses.  Employers can be cited and fined if they do not comply with OSHA standards.  It is also possible for an employer to be cited under OSHA’s General Duty Clause, which requires employers to keep their workplaces free of serious recognized hazards.  This clause is generally cited when no OSHA standard applies to the hazard.

What is the relationship between the EEOC and the U.S.  Department of Justice?

If the EEOC, after investigating a charge of employment discrimination filed against a state or local government employer under Title VII, or the Americans with Disabilities Act, determines that there is reasonable cause to believe a violation of the law has occurred and conciliation efforts are unsuccessful, the EEOC will then refer the charge to the Department of Justice.  The Department of Justice will either initiate litigation on the charge or issue a notice of right to sue to the charging party, which entitles the charging party to file his or her own lawsuit in court.

Is there a time limit involved with respect to filing a charge of discrimination with the EEOC under Title VII?

Yes.  In most instances, a charge must be filed within 300 days of the act of discrimination.  In some states the charge must be filed within 180 days of the act of discrimination. 

What damages can an employer incur if it loses a case for violation of Title VII?

  • A court can award any of the following remedies for violation of Title VII:
  • A court order called an injunction ordering the employer to stop the discriminatory practice;
  • Back pay for up to two years in appropriate situations such as an improper discharge;
  • Punitive damages to punish the employer for flagrant violations of the Act;
  • An affirmative action program to remedy the effects of past discrimination; and
  • Attorneys’ fees to reimburse the winning party for his legal expenses.

How can an individual who wants to file a private suit retain an attorney to represent him or her in a Title VII suit?

The local EEOC office and the courts often maintain lists of attorneys who handle cases involving employment discrimination.  Another source for obtaining names of attorneys is the lawyer referral services operated by state and local bar associations. 

What employers are covered by title I of the ADA, and when is the coverage effective?

The title I employment provisions apply to private employers, State and local governments, employment agencies, and labor unions.  Employers with 25 or more employees were covered as of July 26, 1992.  Employers with 15 or more employees were covered two years later, beginning July 26, 1994.

What practices and activities are covered by the employment nondiscrimination requirements of the ADA?

The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment.  It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.

Who is protected from employment discrimination by the ADA?

Employment discrimination is prohibited against “qualified individuals with disabilities.”  This includes applicants for employment and employees.  An individual is considered to have a “disability” if she/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.  Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.

The first part of the definition makes clear that the ADA applies to persons who have impairments and that these must substantially limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working.  An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered, but an individual with a minor, nonchronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered.

The second part of the definition protecting individuals with a record of a disability would cover, for example, a person who has recovered from cancer or mental illness.

The third part of the definition protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such an impairment.  For example, this provision would protect a qualified individual with a severe facial disfigurement from being denied employment because an employer feared the “negative reactions” of customers or co-workers.

Who is a “qualified individual with a disability?”

A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that she/he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation.  Requiring the ability to perform “essential” functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions.  If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation.  If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.

Does an employer have to give preference to a qualified applicant with a disability over other applicants?

No.  An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability.  For example, suppose two persons apply for a job as a typist and an essential function of the job is to type 75 words per minute accurately.  One applicant, an individual with a disability, who is provided with a reasonable accommodation for a typing test, types 50 words per minute; the other applicant who has no disability accurately types 75 words per minute.  The employer can hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job.

What limitations does the ADA impose on medical examinations and inquiries about disability?

An employer may not ask or require a job applicant to take a medical examination before making a job offer.  It cannot make any pre-employment inquiry about a disability or the nature or severity of a disability.  An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how he would perform these functions.

An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category.  A post-offer examination or inquiry does not have to be job-related and consistent with business necessity.

However, if an individual is not hired because a post-offer medical examination or inquiry reveals a disability, the reason(s) for not hiring must be job-related and consistent with business necessity.  The employer also must show that no reasonable accommodation was available that would enable the individual to perform the essential job functions, or that accommodation would impose an undue hardship.  A post-offer medical examination may disqualify an individual if the employer can demonstrate that the individual would pose a “direct threat” in the workplace (i.e., a significant risk of substantial harm to the health or safety of the individual or others) that cannot be eliminated or satisfactorily reduced through reasonable accommodation.  Such a disqualification is job-related and consistent with business necessity.  A post-offer medical examination may not disqualify an individual with a disability who is currently able to perform essential job functions because of speculation that the disability may cause a risk of future injury.

After a person starts work, a medical examination or inquiry of an employee must be job-related and consistent with business necessity.  Employers may conduct employee medical examinations where there is evidence of a job performance or safety problem, examinations required by other Federal laws, examinations to determine current fitness to perform a particular job, and voluntary examinations that are part of employee health programs.

Information from all medical examinations and inquiries must be kept apart from general personnel files as a separate, confidential medical record, available only under limited conditions.

Tests for illegal use of drugs are not medical examinations under the ADA and are not subject to the restrictions of such examinations.

Does the ADA require employers to develop written job descriptions?

No.  The ADA does not require employers to develop or maintain job descriptions.  However, a written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence along with other relevant factors.  If an employer uses job descriptions, they should be reviewed to make sure they accurately reflect the actual functions of a job.  A job description will be most helpful if it focuses on the results or outcome of a job function, not solely on the way it customarily is performed.  A reasonable accommodation may enable a person with a disability to accomplish a job function in a manner that is different from the way an employee who is not disabled may accomplish the same function.

What is “reasonable accommodation?”

Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions.  Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

What are some of the accommodations applicants and employees may need?

Examples of reasonable accommodation include making existing facilities used by employees readily accessible to and usable by an individual with a disability; restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs.  Reasonable accommodation also may include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to do the original job because of a disability even with an accommodation.  However, there is no obligation to find a position for an applicant who is not qualified for the position sought.  Employers are not required to lower quality or quantity standards as an accommodation; nor are they obligated to provide personal use items such as glasses or hearing aids.

The decision as to the appropriate accommodation must be based on the particular facts of each case.  In selecting the particular type of reasonable accommodation to provide, the principal test is that o effectiveness, i.e., whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and to enjoy benefits equal to those of an average, similarly situated person without a disability.  However, the accommodation does not have to ensure equal results or provide exactly the same benefits.

When is an employer required to make a reasonable accommodation?

An employer is only required to accommodate a “known” disability of a qualified applicant or employee.  The requirement generally will be triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation.  Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case.  If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual’s known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer.  If a person with a disability requests, but cannot suggest, an appropriate accommodation, the employer and the individual should work together to identify one.  There are also many public and private resources that can provide assistance without cost.

What are the limitations on the obligation to make a reasonable accommodation?

The individual with a disability requiring the accommodation must be otherwise qualified, and the disability must be known to the employer.  In addition, an employer is not required to make an accommodation if it would impose an “undue hardship” on the operation of the employer’s business.  “Undue hardship” is defined as an “action requiring significant difficulty or expense” when considered in light of a number of factors.  These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation.  Undue hardship is determined on a case-by-case basis.  Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization.  In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.

If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship.  Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost which would constitute an undue hardship or providing the accommodation.

Must an employer modify existing facilities to make them accessible?

The employer’s obligation under Title I is to provide access for an individual applicant to participate in the job application process, and for an individual employee with a disability to perform the essential functions of his/her job, including access to a building, to the work site, to needed equipment, and to all facilities used by employees.  For example, if an employee lounge is located in a place inaccessible to an employee using a wheelchair, the lounge might be modified or relocated, or comparable facilities might be provided in a location that would enable the individual to take a break with co-workers.  The employer must provide such access unless it would cause an undue hardship.

Under Title I, an employers not required to make its existing facilities accessible until a particular applicant or employee with a particular disability needs an accommodation, and then the modifications should meet that individual’s work needs.  However, employers should consider initiating changes that will provide general accessibility, particularly for job applicants, since it is likely that people with disabilities will be applying for jobs.  The employer does not have to make changes to provide access in places or facilities that will not be used by that individual for employment-related activities or benefits.

Can an employer be required to reallocate an essential function of a job to another employee as a reasonable accommodation?

No.  An employer is not required to reallocate essential functions of a job as a reasonable accommodation.

Can an employer be required to modify, adjust, or make other reasonable accommodations in the way a test is given to a qualified applicant or employee with a disability?

Yes.  Accommodations may be needed to assure that tests or examinations measure the actual ability of an individual to perform job functions rather than reflect limitations caused by the disability.  Tests should be given to people who have sensory, speaking, or manual impairments in a format that does not require the use of the impaired skill, unless it is a job-related skill that the test is designed to measure.

Can an employer maintain existing production/performance standards for an employee with a disability?

An employer can hold employees with disabilities to the same standards of production or performance as other similarly situated employees without disabilities for performing essential job functions, with or without reasonable accommodation.  An employer also can hold employees with disabilities to the same standards of production/performance as other employees regarding marginal functions unless the disability affects the person’s ability to perform those marginal functions.  If the ability to perform marginal functions is affected by the disability, the employer must provide some type of reasonable accommodation such as job restructuring but may not exclude an individual with a disability who is satisfactorily performing a jobs essential functions.

Can an employer establish specific attendance and leave policies?

An employer can establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave.  An employer also may be required to make adjustments in leave policy as a reasonable accommodation.  The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.

A uniformly applied leave policy does not violate the ADA because it has a more severe effect on an individual because of his/her disability.  However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it, unless it would impose an undue hardship.

Can an employer consider health and safety when deciding whether to hire an applicant or retain an employee with a disability?

Yes.  The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat — i.e., a significant risk of substantial harm — to the health or safety of the individual or of others, if that risk cannot be eliminated or reduced below the level of a direct threat by reasonable accommodation.  However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is significant risk that substantial harm could occur in the workplace.  By requiring employers to make individualized judgments based on reliable medical or other objective evidence rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.

Are applicants or employees who are currently illegally using drugs covered by the ADA?

No.  Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a “qualified individual with a disability” protected by the ADA when the employer takes action on the basis of their drug use.

Is testing for the illegal use of drugs permissible under the ADA?
Yes.  A test for the illegal use of drugs is not considered a medical examination under the ADA; therefore, employers may conduct such testing of applicants or employees and make employment decisions based on the results.  The ADA does not encourage, prohibit, or authorize drug tests.

If the results of a drug test reveal the presence of a lawfully prescribed drug or other medical information, such information must be treated as a confidential medical record.

Are alcoholics covered by the ADA?

Yes.  While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a person who currently uses alcohol is not automatically denied protection.  An alcoholic is a person with a disability and is protected by the ADA if he is qualified to perform the essential functions of the job.  An employer may be required to provide an accommodation to an alcoholic.  However, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct.  An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.

How are the employment provisions of the ADA enforced?

The employment provisions of the ADA are enforced under the same procedures now applicable to race; color, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991.  Complaints regarding actions that occurred on or after July 26, 1992, may be filed with the Equal Employment Opportunity Commission or designated State human rights agencies.  Available remedies will include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys’ fees, expert witness fees, and court costs.  Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.

What are an employer‘s recordkeeping requirements under the employment provisions of the ADA?

An employer must maintain records such as application forms submitted by applicants and other records related to hiring, requests for reasonable accommodation, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship for one year after making the record or taking the action described (whichever occurs later).  If a charge of discrimination is filed or an action is brought by EEOC, an employer must save all personnel records related to the charge until final disposition of the charge.

Does the ADA require that an employer post a notice explaining its requirements?
The ADA requires that employers post a notice describing the provisions of the ADA.  It must be made accessible, as needed, to individuals with disabilities.  A poster is available from EEOC summarizing the requirements of the ADA and other Federal legal requirements for nondiscrimination for which EEOC has enforcement responsibility.  EEOC also provides guidance on making this information available in accessible formats for people with disabilities.


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