The Americans with Disabilities Act (ADA) can be one of the most difficult areas of the law for employers to comply with in order to avoid discrimination in hiring. Jobs usually have specific duties that need to be performed, and the entire point of hiring someone is to find the person who is best able to perform those duties.

The good news is the ADA does not change this: you are always allowed to hire the most capable person. However, the ADA does limit what you can and can't ask a disabled applicant and requires you to accommodate their needs so long as they are reasonable.

Who is Protected under the ADA

The ADA is designed to protect "qualified workers with disabilities." Note the use of the word qualified. Despite popular misconceptions, the ADA never requires you to hire a handicapped person over a more qualified application. A qualified worker is someone who can perform the basic and necessary job duties required, with or without accommodation.

Generally there are three ways for an employee to be protected by the ADA:

• Treatment based on actual impairment : if an employee has a physical or mental impairment that substantially limits a major life activity, you cannot use that impairment as a basis to discriminate against the employee.
• Treatment based on history of impairment : if an employee has a history of being impaired, you cannot use that history as a basis to discriminate against the employee.
• Treatment based on belief of impairment : if you believe an employee has a physical or mental impairment that substantially limits a major life activity, even if that belief is mistaken, you cannot use that impairment as a basis to discriminate against the employee.

Impairments must be long term disabilities; short term disabilities like broken bones or pregnancy are not covered by the ADA.

Making Reasonable Accommodations

Under the ADA you are required to make reasonable accommodations to assist a disabled person perform their job. The key word is "reasonable". For example, providing an employee in a wheel chair with a lower desk to make work more ergonomic would likely be considered a reasonable accommodation, provided that doing so doesn't require excessive work or cost on your part. Here's how the process of reasonably accommodating a disabled person works:

• Don't ask whether you need to accommodate them, let them tell you : it's best not to ask whether someone needs accommodations, because if you are wrong and they are not disabled, you may run afoul of the ADA. Rather, if they need accommodations, let them inform you so there is no misunderstanding.
• Negotiate in good faith : once an employee has let you know he or she needs accommodations, negotiation with them in good faith. Remember the law requires reasonable accommodations, not for you to do whatever they want. The law requires that you negotiate in good faith and be flexible - neither side can just make demands.
• Undue hardships : even if an accommodation may otherwise seem reasonable, the ADA doesn't require you to make accommodations that would cause an undue hardship. If an otherwise reasonable accommodation would require you to spend a year's profits, you certainly aren't required to do it. Common factors for establishing an undue hardship include:
  • The size and resources available to your company
  • The cost of the accommodation
  • The effect the accommodation would have on your company
  • The structure of your company

If you are unsure whether what the employee asks is reasonable or what constitutes an undue hardship, seek advice from an attorney.

Alcohol, Drugs and the ADA

Alcohol and drug use can be the basis of a disability under the ADA, but are governed by a slightly different set of rules. An employer can require that, regardless of any alcohol or drug disability, an employee refrain from using any drugs while on the job. Here are some of the other nuances:

• Alcohol: alcoholism is covered by the ADA, which means that you cannot fire or discipline an employee because you find out that he or she is an alcoholic. That doesn't mean, however, that you can't fire an employee who is drinking on the job. Similarly, you can fire an alcoholic for not meeting performance requirements, so long as you do so consistently and apply these performance requirements consistently to all employees.
• Illegal drugs: the ADA does not cover illegal drug use and users of illegal drugs are not "disabled" within the meaning of the ADA. The ADA does, however, cover workers who no longer use illegal drugs and have been rehabilitated from being discriminated against.
• Legal drugs: if someone with disabilities takes legal drugs for that disability, you may have to accommodate the use of those drugs and side effects, to the extent that it is reasonable. If there is no reasonable accommodation available for the side effects (such as sleepiness for a heavy machine operator), then you do not have to accommodate the use of legal drugs.