If a company has daily production quotas, do employees with disabilities need to meet the same standards as other employees? Can job applications ask about a candidate's disability? This edition of Ask About the ADA answers a couple of tough questions about employment under Title I of the Americans with Disabilities Act.
NortheastADA.org
If a company has daily production quotas, do employees with disabilities need to meet the same standards as other employees? Can job applications ask about a candidate's disability? This edition of Ask About the ADA answers a couple of tough questions about employment under Title I of the Americans with Disabilities Act.
NortheastADA.org
JOE ZESSKI: Hello, welcome to Ask About the ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it applies to your everyday life.
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On this edition of Ask About the ADA, we're going to deal with two different employment-related questions. One is from an employee with a disability, while the other comes from an applicant for a position who has a disability, so two different perspectives, both about accommodations in employment. Let's dig into those different scenarios.
Our first question comes from someone who is low vision. They write that they work for a company that has a daily production level requirement. Now this person has the same requirement as co-workers who don't have a disability. The question that came from them was, am I protected under the ADA if I can't meet the same production level as my coworkers without disabilities?
Now under the Americans with Disabilities Act, the purpose of the law is to provide equal opportunity and equal access. And that's important to keep in mind here, as it doesn't provide special protections for an employee with a disability. Rather, it just makes sure that there is an equal playing field for that employee.
So in this case, the employer is required to provide any reasonable accommodations that would allow this person to do their essential job functions, in other words, the essential tasks that they are required to do and meet in terms of their work expectations. However, the ADA would not require the employer to lessen or remove any requirements to meet certain productivity levels. So in fact, an employer is not required under the ADA to lower quality or production standards.
Another important and key consideration to keep in mind, though, is that an employer must be consistent in their policies. So if they have production levels that are required for all employees, then that must be applied uniformly. In other words, it must be applied to everyone equally, whether or not they have a disability. So if an employee without a disability failed to meet the productivity requirements, then that employee would need to be penalized in the same way that an employee with a disability would be penalized for failing to meet the requirements of the job. So again, it's all about an equal playing field and equal responsibility in terms of performing job duties and functions.
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Our second question comes from someone who's applying for a position with a federal contractor. The person asks about something on the application. As part of the application there's an opportunity to self-identify as a person with a disability, is this legal? The answer to this question is yes. A federal contractor or subcontractor covered by Section 503 of the Rehabilitation Act of 1973 can invite people to self-identify as part of their application process. That can be on the application itself or during the general process.
Now that being said, this request must take very specific form and direction. There is a form that is used that is provided by the Department of Labor to invite someone to disclose whether or not they have a disability. Now why are they asking this question? And again, keep in mind this applies only to federal contractors and subcontractors covered by Section 503 of the Rehabilitation Act, they're permitted to ask this question because there are certain affirmative action requirements under Section 503 of the Rehabilitation Act. And so there is, if you will, special dispensation in a sense to ask this question where of course, under the Americans with Disabilities Act, disability inquiries are not permitted on an application or in the application process.
A few key things to keep in mind. First, there is no requirement to self-disclose that you have a disability. Even if the question is permitted, such as in this one circumstance of a federal contractor or federal subcontractor covered by Section 503, the person who has a disability still has the right not to disclose if they choose.
Second, if a person does decide to share that they have a disability and disclose what it is as part of the application then that information handled by an employer must be kept strictly confidential and in a separate record from the personnel file. So in other words, the information must be kept discreet and private, and should not be shared with anyone in the company who is not on a strictly need-to-know basis to process the information. A lot of this information can be found on the Department of Labor's website and I would encourage everyone to read more about it if you've seen this type of question on an application.
So let's review, in this case, we have a question about someone who is applying to be employed by a federal contractor or subcontractor who is covered by Section 503 of the Rehabilitation Act. Under that law, it is permissible to invite someone to self-identify as a person with a disability. However, there is no obligation for the prospective applicant or employee to do so, they can choose to share that information but they are under no obligation to.
However, if the employer is covered by Section 503 of the Rehabilitation Act they are permitted to make that invitation and to keep whatever information they gain from it private and confidential. But under the Americans with Disabilities Act, asking a person to identify as someone with a disability as part of the application process is not permissible. There should be no questions about trying to identify if someone has a disability as part of the application process.
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That's it for this week's edition of Ask About the ADA. I hope you found our conversation about applications, accommodations, and disability, interesting and informative. If you have questions about employment or about any other aspect of the Americans with Disabilities Act, I encourage you to reach out to us here at the Northeast ADA and submit your questions. And perhaps in some form, you'll hear it in the future on this podcast.
Or of course, you can always feel free to reach out to us directly here at the Ask About the ADA podcast. You can find Northeast ADA at northeastada.org. You can look on social media. Look for @NortheastADA, and you'll find us on Facebook, Twitter, Instagram, YouTube, all of the usual social media channels.
Thanks, as always, to Grace Fairchild, our producer for the podcast, and editor. Thanks as well to Peter Quinn of the Yang-Tan Institute's media team, who also does editing on the podcast. And finally, thanks to you, our listeners, and I hope you stay part of our conversation.
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