Disabilities
The Americans with Disabilities Act (ADA) Amendments of 2008 became effective in January, 2009. The original Act (1990) makes it unlawful to discriminate in employment against a qualified individual with a disability and includes such employment practices as recruitment, hiring, firing, training, job assignments, promotions, pay,benefits, layoffs, and leaves. Private employers, state and local governments, employment agencies labor organizations and labor-management committees are covered by the law. If they had 25 or more employees after July 26, 1992 and 15 or more employees after July 26,1994.
The ADA defines a disability as a physical or mental impairment that limits one or more major life activities. A major life activity includes walking, sitting, learning, caring for oneself, etc. To determine if such an impairment exists, the following factors need to be evaluated: the nature and severity of the impairment, the duration or expected duration, and whether or not there will be a permanent or long-term impact.
Major impacts of the 2008 amendments include, according to the www.eeoc.gov website:
• An expansion of the definition of “major life activities” by including two non-exhaustive lists. The first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating). The second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”).
• An indication that mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability (so, for instance, an epileptic who has successfully controlled his or her seizures through medication for several years would still be considered to have a disability).
• Clarification that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• A change to the definition of “regarded as” so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is “regarded as” disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor.
• An indication that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation.
The EEOC will be evaluating the impact of these changes. For employers, the key points to remember are that employer cannot discriminate against an applicant on the basis of that person’s disability unless the employer can demonstrate that the disability would adversely affect the person’s ability to perform the job.
The typical statute or ordinance requires that employers not take adverse action against a disabled employee if “reasonable accommodation” can be made to allow the employee to perform his or her job. Such reasonable accommodation may include providing special equipment, modifying work hours, or allowing for work to be done at home.
The employer is not required to create a new job, substantially change the old one or the working conditions, or spend undue sums of money to accommodate a disabled employee. Obviously these guidelines are extremely subjective as there has been (and will continue to be) a great deal of litigation surrounding this issue. The resultant case law will eventually provide more distinct guidelines for employers dealing with issues of disability in the workplace.
In terms of dealing with questions related to candidate’s disabilities, a simple way to determine whether you can ask a question is to focus on issues that directly affect the candidate’s ability to perform the job. Whether dealing with physical disability, age, sex, or other protected areas, it is always permissible to ask applicants if they have any condition that would prevent them from performing the job. Keep in mind that these questions must be asked of all candidates. Further, these questions should be followed up with inquiries about what type of special accommodations would need to be made should this employee be hired.
Don’t ask, “Do you have a disability?” Do ask, “Do you have any impairment that would keep you from performing the requirements of this job?”
2.5 Drug testing
The issue of drug-use testing has reared its head in boardrooms and on loading docks throughout North America. Many states and municipalities have adopted measures restricting or regulating the use of drug testing by employers. In addition, certain other national regulations may apply depending on the industry you are in and the type of business you do. For instance, the Drug-Free Workplace Act requires all government contractors to certify that they will maintain a drug-free environment to be eligible for contracts of $25,000 or more. Executive Order 12564, established in 1986, requires federal agencies to develop antidrug programs that include requirements for testing employees for drug use. The Department of Transportation rules require that employers test an employee for the presence of illicit drugs if the employee’s performance may have contributed to an accident. The Department of Defense rules specify that a contractor must establish a program for testing of employees in “sensitive positions.”
Naturally employers want to protect themselves, their clientele, and other employees from the adverse effects of an employee who abuses illicit drugs. Employees are equally concerned about the preservation of their right to privacy, about the possibility of misread or botched tests, and about the effects of drug testing on their current and future earning capacity.
Drug use has been shown to increase industrial accidents, including property damage and personal injury. In addition, drug use can lower productivity and increase absenteeism and tardiness. Drug-use testing programs, on the other hand, can have a negative impact on morale and can have their own adverse effects on productivity.
If you are considering establishing a drug-free workplace program, make sure that you —
• are aware of federal, regional, and local requirements applying to drug testing;
• consider the possible application of general discrimination laws that may apply to rehabilitated drug users;
• consider the issues of employee privacy, test accuracy, and confidentiality and how they may affect claims of abusive discharge; and
• consider the subjective impact of such a decision on your workforce.
Drug use affects businesses to the tune of billions of dollars each year. Regardless of the existing state of the law, employers must consider the pros and cons of implementing programs to combat these costs. A proactive approach is needed to strike a balance between the needs and rights of employees and the needs of the company.
3. Guidelines in Canada
Every jurisdiction in Canada has legislation designed to ensure equality for its people. These statutes have their origin in the 1948 Universal Declaration of Human Rights (UDHR) of the United Nations. All jurisdictions express opposition to discrimination on the basis of race, nationality, ethnic origin or place of origin, color, religion or creed, marital status, or sex.
The authority to enact laws in Canada is divided between the provincial and the federal governments. The laws enacted by the federal government are contained in the Canada Labour Code and apply mainly to employees of federal Crown corporations and federally regulated areas, including the following:
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