I'm someone with a disability that people can't see. In my job interview tomorrow, do I have to tell the company about my disability in the interview?
No. Applicants and employees are not required to share this information, unless requesting a reasonable accommodation or modification in how they participate in a job interview or perform essential job functions or tasks. Under Title I (Employment Provisions) of the Americans with Disabilities Act (ADA), disclosing or telling an employer that you have a disability is a personal choice.
If you do not need/want to request an accommodation, you never need to disclose your disability. If you do want to make an accommodation request, this can be done at any time during the hiring process (before the interview, during the interview, and after you are offered the job and before you start). You can also ask for an accommodation at any point during your employment if you find you need it.
The ADA, the Workplace, and Emotional Support Dogs
Q: My dog provides me with emotional support. Does the ADA give me the right to have my dog with me on the job?
A: This is not a yes or no answer. In terms of employment under the ADA, the US Equal Employment Opportunity Commission (EEOC) is the federal agency that creates the regulations (Title I) related to employment. They have not defined service animal in their regulations, unlike the US Department of Justice (DOJ) in its ADA regulations for Title II and III. Instead, the EEOC has made the issue one of reasonable accommodation, the mechanism by which a person with a disability can ask for a change or alteration in the work environment in order to be able to do the essential job functions. In the workplace, an emotional support animal might be a possible reasonable accommodation. However, the employer must decide if it is reasonable to permit the dog and that it would not cause an undue hardship to allow the dog.
Essential Job Function
Q: An employee has requested that one of their job functions be removed because of their disability. I think that the function is essential. Is there any guidance on how to figure out whether a job function is essential or not?
A: The US Equal Employment Opportunity Commission (EEOC) enforces the regulations for employment under the Americans with Disabilities Act (ADA). To help determine what is or is not an essential job function, the EEOC looks at multiple factors that must be weighed when trying to understand what may or may not be an essential function. In their guidance, The ADA: Your Responsibilities as an Employer, the EEOC lists the following points:
- Whether the reason the position exists is to perform that function,
- The number of other employees available to perform the function or among whom the performance of the function can be distributed, and
- The degree of expertise or skill required to perform the function.
- The actual written job description.
- The actual work experience of present or past employees in the job,
- The time spent performing a function,
- The consequences of not requiring that an employee perform a function, and
- The terms of a collective bargaining agreement.
If a patient using a wheelchair in my health care practice cannot perform a transfer without assistance, do we have to help them?
Yes. The best way to help patients transfer by themselves would be to provide an adjustable-height table. In a cases where having an adjustable-height table is not readily achievable, a health care facility must help patients onto the high tables, including lifting them if necessary. The provider should take every precaution to ensure that this is accomplished in a manner that is safe for the patient and the assisting staff. The facility should have policies that require appropriate training in techniques as well as access to mechanical assistance, such as with a Hoyer lift, should be in place.
If I lease my medical office space, am I responsible for making the exam room, waiting room, and toilet rooms are accessible?
Yes. Any private entity that owns, leases or leases to, or operates a place of public accommodation must comply with Title III of the Americans with Disabilities Act (ADA). The tenant and the landlord are equally responsible for complying with the ADA. However, your lease may specify that, as between the parties, the landlord is responsible for some or all of the accessibility requirements of the space. Frequently, the tenant is made responsible for the space it uses and controls (e.g., the examination rooms and reception area), while the landlord is responsible for common spaces, such as toilet rooms used by more than one tenant. You can learn more about accessibility requirements for medical offices in the pamphlet Department of Justice Access to Medical Care for Individuals with Mobility Issues.
My hospital is controlled by a religious organization. Does Title III of the ADA still apply?
Yes and no. Religious organizations or entities controlled by religious organizations are exempt from Title III of the Americans with Disabilities Act (ADA). However, they are subject to the Title I employment protections of the ADA if the hospital has 15 or more employees or possibly under some state laws. If the hospital receives federal funding, it is obligated under Section 504 of the Rehabilitation Act to make its services accessible to persons with disabilities. This includes hospitals that receive Medicaid and Medicare reimbursements. State and local laws may apply as well, such as state and local building codes.
Reasonable Modification of Polices
Q: I own a dental practice. A patient asked if my staff could fill out their paperwork for them because they have a cognitive disability. Our policy is that they complete this on their own. Do we have to assist them
A: Yes. Healthcare providers are required to make reasonable modifications to policies, practices, and procedures to provide equal access to facilities and services for people with disabilities. The term “reasonable modification” is a broad concept that covers every type of disability. Assisting an individual with a disability to complete paperwork ensures access and equally effective communication to that individual.
My business has requests from time to time to provide for interpreters and other services for people who are deaf or hard of hearing. Are there any tax benefits I can claim to assist me with these costs?
Good news! Assuming that your business counts as a “small business” under Section 44 of the Internal Revenue Code, you can get a tax credit of up to $15,000 for a variety of accessibility-related expenses, including sign language interpreters. Section 44 defines a small business as one that in the previous tax year either had revenues of $1 million or less or had 30 or fewer full-time employees. This tax credit, which is called the Disabled Access Credit, was created in 1990 to help small businesses afford ADA-related expenses. Be sure to familiarize yourself with how this credit is computed—you may want to consult your accountant. Here’s a list (taken from ADA.gov) of what can count toward this credit:
- Provision of readers for customers or employees with visual disabilities
- Provision of sign language interpreters
- Purchase of adaptive equipment
- Production of accessible formats of printed materials (i.e., Braille, large print, audio tape, computer diskette)
- Removal of architectural barriers in facilities or vehicles (alterations must comply with applicable accessibility standards)
- Fees for consulting services (under certain circumstances)
Tax Incentives for Business Owners to Improve Accessibility
Q: I own a small business that needs some physical modifications for people who are wheelchair users or have other mobility impairments. Does the federal government have any tax incentives to help me with the costs of making these modifications?
A: Yes. The Disabled Access Credit, IRS form 8826, provides a credit for small businesses that incur expenditures for providing access to persons with disabilities. An eligible small business is one that earned $1 million or less or had no more than 30 full-time employees in the previous year. In addition, the Barrier Removal Tax Deduction encourages businesses of any size to remove architectural and transportation barriers to the mobility of persons with disabilities and the elderly. Businesses may claim a deduction of up to $15,000 a year for qualified expenses for items that normally must be capitalized. Businesses claim the deduction by listing it as a separate expense on their income tax return.
In addition, eligible small businesses may use the Disabled Access Credit and the architectural/transportation tax deduction together in the same tax year, if the expenses meet the requirements of both sections. When using both, the deduction is equal to the difference between the total expenditures and the amount of the credit claimed, up to $15,000 per year.
