What Is the ADA?

The Americans with Disabilities Act (ADA) is a law that makes it illegal to discriminate against anyone with a disability. Discrimination means you are treated unfairly or unequally because you have a disability. Discrimination also occurs when you are denied a necessary reasonable accommodation.

How Does the ADA Define Disability?

The ADA uses the term “substantial impairment” to define which disabilities qualify for protection. To be protected under the law, you must have, have a record of, or be regarded as having a physical or mental impairment that substantially limits one or more major life activities. Major life activities include, but are not limited to, hearing, seeing, speaking, walking, breathing, and performing manual tasks, caring for oneself, learning, reading, eating, sleeping, lifting, bending, standing, thinking, communicating, concentrating, and working. Major life activities also include the operation of major bodily functions. That means you are covered under the ADA if you have a condition that affects any of the following:

• The immune system
• Special sense organs
• The skin
• Normal cell growth
• Digestive, genitourinary, bowel, and bladder functions
• Nervous system, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions
• The kidneys and brain

Additionally, the ADA protects you in the following cases:

• You have a history of a disability (such as cancer that is now in remission) or an employer believes you are disabled, even if you are not.
• You have a relationship with a person who is disabled, even if you do not have a disability. For example, it is illegal for an employer to discriminate against you because your spouse or child has a disability. Keep in mind, however, that this protection does not require an employer to supply you with a reasonable accommodation because your family member has a disability.

Does the ADA Apply to All Employers?

The ADA applies to all private employers with 15 or more employees, all state and local government employers (regardless of how many employees they have), unions, and employment agencies. The ADA does not apply to federal agencies. Instead, federal agencies have to follow the Rehabilitation Act of 1973, which is almost identical to the ADA. The ADA does not apply to employers owned and operated by Indian tribes, but tribal employers may be covered by Section 504 of the Rehabilitation Act or by tribal laws similar to the ADA.

What Parts of Employment Does the ADA Cover?

The ADA covers all aspects of employment, including:

• Hiring, firing, and pay
• Job assignment, promotion, layoff, training, and fringe benefits (such as health care coverage, pension, or retirement contributions)
• Any other term or condition of employment

The ADA also makes it illegal for a covered employer (an employer to whom the ADA applies) to ask disability-related questions before making a job offer. An employer may not withdraw the job offer when learning about a disability, unless the employer can show that the person can’t perform the essential functions of the job even with reasonable accommodations. After a person has been hired for a job, an employer may not ask disability related questions or require a medical examination unless it is related to the job and necessary for business.

It is also illegal for an employer to retaliate — take negative actions — against you for asserting your rights under the ADA or for using the EEOC or Arizona Civil Rights Division’s procedures to complain about discrimination. So you are protected when you do things like tell your employer you have a disability, request a reasonable accommodation, or file a complaint.

If you have a disability and are employed, or looking for a job, your right to ask for reasonable accommodations is one of the most important parts of the ADA. In addition to protecting people with disabilities from discrimination, the ADA also requires employers to supply you with reasonable accommodations to do your job, when you apply for a job, or when you participate in an employment benefit.

Examples of reasonable accommodations include, but are not limited to, making changes to building or equipment to make it more accessible and usable by people with disabilities, changing when or how a person performs an important job function, modifying a work schedule, buying equipment or devices, supplying training materials or policies in a different format, supplying sign language interpreters, offering leave to get treatment or recover from disability-related conditions, and other similar actions.

Employers are not required to supply reasonable accommodations that would result in an undue hardship to the employer’s operations. An undue burden means it would be very difficult or very expensive for the employer to accommodate you. If an accommodation is too difficult or too costly, your employer, or potential employer, should work with you to figure out if:

• There is an accommodation that would work and that would not be an undue burden to the employer or potential employer
• There are resources from other agencies that might help with the cost of the supplying the accommodation

To learn more about reasonable accommodations and how to request them, read the DB101 article on Job Supports and Accommodations.

How Am I Protected by the ADA?

If you have a disability and are qualified to do a job, the ADA protects you from job discrimination. Under the ADA, you have a disability if you have a physical or mental impairment that substantially limits a major life activity.

If you have a disability, you will be protected by the ADA if you also are qualified to perform the essential functions or duties of a job, with or without reasonable accommodation. This means two things:

1. You must meet the minimum requirements that the employer requires all job applicants to have, such as education, work experience, skills, or licenses.
2. You must be able to perform the essential functions of the job with or without reasonable accommodations. Essential functions are the fundamental job duties that you must be able to perform on your own or with the help of a reasonable accommodation. An employer cannot refuse to hire you because your disability prevents you from performing duties that are not essential to the job. At the same time, you cannot ask that an essential function be removed from your job description as a reasonable accommodation.

Arizona Civil Rights Act (ACRA)

The Arizona Civil Rights Act (ACRA) is a state law that also prohibits employment discrimination against people with disabilities. The ACRA offers pretty much the same protections as the ADA.

Who Enforces the ADA and ACRA?

The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces the ADA.The Arizona attorney general’s office has a Civil Rights Division (ACRD) that enforces the state employment discrimination law. Later in this article, we’ll talk more about what to do if you think your employer is not respecting your rights under the ADA and ACRA.

Where Can I Learn More About the ADA and ACRA?

Disability Rights Arizona can help you understand your rights under federal and state discrimination law. It can help you understand if you are being treated unfairly because of your disability.

Discrimination means you are being treated unfairly or unequally because of your disability. The Americans with Disability Act (ADA) makes it illegal to discriminate against people with disabilities. There are many ways that an employer can discriminate against you, including:

• Intentionally not giving you the same job opportunities or benefits as nondisabled coworkers because of your disability, such as
  • A job
  • A promotion
  • A fair salary
• Failing to prevent a hostile work environment in which disabled employees are treated to offensive behavior and language because of their disabilities
• Asking disability-related questions or requiring medical examinations before a job offer is made
• Retaliating against you (getting back at you) because you asserted your rights under the ADA, such as asking for a reasonable accommodation, or participated in the procedures available under the ADA to complain about discrimination. Retaliation can include:
  • Coercion, which means forcing you to do something against your will
  • Intimidation, which means frightening or bullying you to follow the employer’s demands
• Interfering with your rights, which means making it difficult for you to enjoy the same rights and benefits at work as your nondisabled coworkers

Discrimination Can Be Intentional or Unintentional

Intentional discrimination happens for many reasons. For example, when an employer does not want to pay for your reasonable accommodations or looks down on you because you are disabled, the employer may do something on purpose to you that is unfair.

Unintentional discrimination usually happens because an employer evaluates or promotes employees in a way that puts disabled people at a disadvantage. The employer usually does not mean to discriminate and does not realize that certain actions or practices are discriminatory.

The ADA makes it unlawful for an employer to retaliate against a person with a disability or a nondisabled person who filed a complaint, gave evidence, or otherwise participated in an investigation to enforce the ADA.

How Do I File a Complaint?

If you believe that you have been discriminated against because of your disability, you can file a discrimination claim (called a “charge”) either with Arizona’s Civil Rights Division (ACRD) of the attorney general’s office or with the Equal Employment Opportunity Commission (EEOC).

The EEOC’s website includes good information about how the actual process of filing a complaint works.

How Do I File a Lawsuit?

Private lawsuits are an option, but you cannot file a lawsuit until after the EEOC or ACRD has investigated your charge and given you a notice that is called “a right to sue” letter.

You have to file your discrimination charge within a certain amount of time or you lose your right to sue. To file your charge with the Arizona Attorney General’s Civil Rights Division (ACRD), you have to do so within 180 days from the date the discrimination took place. To file your complaint under the ADA with the Equal Employment Opportunity Commission (EEOC), you have to do so within 300 days of the date you were discriminated against. However, don’t wait for the deadline to get too close. When you visit the ACRD or the EEOC to file your charge, they will assist you in filing under both laws and supplying a copy of your charge to the other agency.

If you have been discriminated against and the EEOC or ACRD decides in your favor, they will attempt to get the employer to voluntarily comply with the law and supply you with relief to compensate you for the discrimination. Depending on the circumstances of your case, this means you may be entitled to get hired, get back pay, or get reasonable accommodations. If the employer refuses, the EEOC and the ACRD may choose to file a lawsuit. If the agencies do not file a lawsuit, you have the right to file your own lawsuit under the Americans with Disabilities Act (ADA) or the Arizona Civil Rights Act (ACRA). In your lawsuit, you can ask for back pay, getting your job back, a reasonable accommodation, and other types of relief.

Protection and Advocacy

You can also contact your state’s Protection and Advocacy center when you have questions or problems with reasonable accommodations at work or when you think you are being treated unfairly because of your disability. Arizona’s Protection and Advocacy organization is Disability Rights Arizona. Social Security also has a page describing what Protection and Advocacy can help with.

The Family and Medical Leave Act (FMLA) requires private employers with 50 or more employees and all state, local, and federal government employers to give qualified employees up to 12 work weeks of unpaid leave a year for specific reasons. To take the leave, you must have recently given birth or adopted a child, have a serious health condition, including pregnancy-related health conditions or incapacities, or be taking care of a family member with a serious health condition.

In these situations, any leave you take from work will be “job-protected,” which means that at the end of your leave, you must be allowed to return to your original job or be given another job with similar benefits, pay, and terms and conditions. The FMLA also requires that your employer continue to supply you with group health insurance benefits during your leave.

Does the FMLA Apply to All Employers?

The FMLA applies to all public agencies, including state, local, and federal employers, local education agencies (schools), and private-sector employers who employ 50 or more employees.

Who Is Eligible?

To be eligible for FMLA benefits, you must:

• Work for an employer to whom the FMLA applies
• Have been employed by the employer for at least 12 months (one year)
• Have worked for at least 1,250 hours during the 12-month period right before the start of the leave
• Be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite

When Can You Use the FMLA to Take an Unpaid Leave?

The FMLA lets you take up to 12 work weeks (or three months) of unpaid, job-protected leave in a 12-month period for the following family and medical reasons:

• You recently gave birth to a child and need to take care of your child.
• You have a new adopted or foster child.
• You need to care for a spouse, son, daughter, or parent with a serious health condition.
• You have a serious health condition and need to take medical leave from work.
• You have qualifying exigencies (things that must be taken care of urgently) because your spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a military operation.

If you are an eligible employee and your spouse, son, daughter, parent, or next of kin is a current member of the Armed Forces (including a member of the National Guard or Reserves) and has a serious injury or illness, an employer to whom the FMLA applies must give you up to a total of 26 work weeks of unpaid leave during a “single 12-month period” to care for the service member.

If you and your spouse work for the same employer, you will be limited to a combined total of 12 work weeks of leave (or 26 work weeks if the leave includes care for a covered service member with a serious injury or illness).

If you recently gave birth to a child or have adopted or foster children living with you, you can take your leave only within the 12 months that immediately follow the birth of your child or the placement date of your adopted or foster child.

Sometimes it is possible to arrange to take leave in more than a single block of time as long as the leave is for one reason. For example, someone might arrange to take leave over time to have regular treatments for cancer. It may also be possible for you to continue working but use FMLA leave to reduce your usual weekly or daily work schedule.

Because FMLA leave is unpaid, you may wish to use any paid sick leave or vacation leave that you have available before or at the same time as your FMLA leave. If you are enrolled in a public or private short-term disability insurance plan, it may help replace some of the lost income during treatment.

Serious Health Condition

The Family and Medical Leave Act (FMLA) defines a serious health condition as an illness, injury, impairment, or physical or mental condition that offers one or more of the following reasons for absence:

• You are getting inpatient care. For example, you’ve been admitted for an overnight stay at a hospital, hospice, or residential medical-care facility.
• You have a period of incapacity.
• You get follow-up treatment connected with inpatient care.

• You get treatment for a condition that leaves you unable to work for longer than three consecutive days – whether they are work or nonwork days doesn’t matter – and
  • You get that treatment at least two times within a 30-day period or
  • That treatment is continuing, which means it is a prescription or you are doing physical therapy.

• You get continuing treatment for pregnancy or prenatal care.

• You get continuing treatment for an ongoing, serious health condition that
  • Lasts for a long time
  • Requires visits to a doctor at least twice a year
  • May involve occasional periods of incapacity

• You get ongoing treatment for a period of incapacity that is permanent or long-term because of a condition that doesn’t have an effective treatment.

• You get multiple treatments for restorative surgery.

• You get treatment for a condition that would probably end up causing incapacity, which means, if not treated, the condition would make you unable to do the basics of your job or to perform other life activities for at least four consecutive days.

Continuation of Health Care Benefits

If you had group health insurance through your employer prior to taking FMLA leave, your employer must continue to give you health care coverage during your leave. If you pay part of the cost, you must continue to do so during your leave.

Returning to Your Job

When you return from your FMLA leave, you must be given your job back. If you are not given the same job, you must be given another one with the same pay and benefits. Taking FMLA leave should not cause you to lose any benefits that you earned before you took the leave. There are some exceptions to this rule for the highest paid “key” employees in an organization.

Giving Notice That You Need FMLA Leave

If you know ahead of time that you will need to use FMLA leave, you must tell your employer 30 days in advance. If you know you will need to take leave in less than 30 days, you should tell your employer right away. If you have to take leave for something you did not know about ahead of time, you should tell your employer as soon as possible. If possible, you should also try to follow your employer’s usual policy about asking for leave.

When you ask for FMLA leave, you need to give your employer enough information so your employer can find out if the FMLA applies to your leave request. Depending on the situation, such information may include that you are unable to come to work due to pregnancy, that you have been hospitalized overnight, or that you or your qualifying family member is getting continuing care from a health care provider.

Documenting Your Reason for Leave

When you ask for leave because you or your family member has a serious health condition, your employer may ask for certification of the condition from a health care provider. The employer may also seek a second opinion about the condition from another health care provider as long as the employer pays for it.

Protections Provided by the FMLA

The FMLA makes it unlawful for an employer to stop you from using the rights protected by the FMLA. It is also unlawful for an employer to fire you or discriminate against you (treat you unfairly or unequally) when you exercise your rights under the FMLA.

If you need more information about the FMLA or you think your employer may be denying you your rights, contact the Arizona Department of Labor. You can also contact the U.S. Department of Labor’s Phoenix District Office directly:

To learn more about FMLA policies, click here.