ADA: Frequently Asked Questions

Q1: Are individuals who currently use illegal drugs protected by the ADA?
A: Individuals who are currently engaging in the illegal use of drugs are not protected by the ADA when an employer takes action because of that current illegal drug use. Illegal drug use may include misuse of prescription medication, such as using medication without a valid prescription or in a manner inconsistent with the prescription.

The ADA does not prevent a city from enforcing a lawful, consistently applied drug-free workplace policy or from taking employment action based on current illegal drug use. A test for the current illegal use of drugs is not a medical examination under the ADA.

However, ADA protection may apply to an individual who:

• Has successfully completed a supervised drug-rehabilitation program and no longer engages in illegal drug use.
• Is participating in a supervised rehabilitation program and no longer engages in illegal drug use.
• Is mistakenly regarded as currently engaging in illegal drug use when the individual is not using illegal drugs.

Alcoholism may qualify as a disability under the ADA. A city may still enforce the same job-related conduct, attendance, performance, and safety standards that it applies to other employees. Before taking action, consult HR when substance-use disorder, rehabilitation, medication, accommodation, FMLA leave, or another protected issue may be involved.

Q2: Are gay, lesbian, or bisexual employees protected by the ADA?
A: Sexual orientation is not itself a disability under the ADA. However, city employees and applicants are protected from employment discrimination based on sexual orientation under Title VII of the Civil Rights Act.

A city may not make decisions about hiring, assignments, compensation, promotion, discipline, termination, training, or other employment terms because an individual is gay, lesbian, bisexual, or of another sexual orientation.

An LGBTQ+ employee may also have ADA rights if the employee has a separate physical or mental impairment that qualifies as a disability. Any accommodation request should be evaluated based on the employee’s actual work-related limitation and the requirements of the job.

Q3: Are temporary conditions covered by the ADA?
A: Yes. A temporary condition can qualify as a disability under the ADA. The ADA does not require an impairment to be permanent, long-term, chronic, or expected to last more than six months.

The question is whether the impairment substantially limits one or more major life activities. This standard must be construed broadly. Duration may be relevant, but a city should not deny an accommodation request simply because the condition is temporary or expected to improve.

For example, a back impairment resulting in a 20-pound lifting restriction for several months may substantially limit the major life activity of lifting.

The six-month concept applies only to the limited “transitory and minor” exception under the ADA’s “regarded as” prong. It does not create a six-month minimum for actual-disability or record-of-disability coverage.

Q4: Does the ADA Amendments Act apply to discriminatory acts that occurred before January 1, 2009?
A: No. The ADA Amendments Act of 2008 became effective January 1, 2009, and does not apply retroactively to alleged discriminatory acts that occurred before that date.

For example, if an alleged failure to hire, termination, or denial of accommodation occurred in December 2008, the pre-ADAAA definition of disability generally applies, even if an EEOC charge was filed later. The ADAAA applies to alleged discriminatory acts occurring on or after January 1, 2009.

This issue is primarily historical. Current city policies and practices should use the ADAAA’s broader disability standards.

Q5: Does the city need a special recordkeeping process for ADA and GINA information?
A: Yes. A city must maintain disability-related medical information in confidential medical files separate from an employee’s general personnel file.

This includes medical information obtained through accommodation requests, fitness-for-duty reviews, medical examinations, medical certifications, return-to-work documentation, work restrictions, workers’ compensation records, and similar medical documentation.

Genetic information also must be kept confidential. Genetic information may include family medical history, genetic-test results, information about genetic services, and certain information about a fetus or embryo. A city may maintain ADA medical information and GINA information in the same restricted medical-record system, but access must be limited and confidentiality rules must be followed.

The city should:

• Keep medical and genetic information separate from the personnel file.
• Limit access to HR, the ADA coordinator, designated leave administrators, and others with a legitimate need to know.
• Give supervisors only the information necessary to implement approved work restrictions or accommodations.
• Avoid providing supervisors with diagnoses or unnecessary medical details.
• Use the EEOC’s GINA safe-harbor notice whenever requesting medical information from an employee or health-care provider.
• Maintain documentation of accommodation requests, decisions, implementation, and follow-up.

Q6: Who is a “qualified individual with a disability”?
A: A qualified individual with a disability is a person who:

1. Meets the job-related skill, experience, education, licensing, and other legitimate requirements of the position; and
2. Can perform the essential functions of the position, with or without reasonable accommodation.
3. Essential functions are the fundamental duties of the position. They do not include marginal or incidental duties.

The ADA does not require a city to eliminate an essential function. However, the city may need to provide accommodation that allows the employee to perform the function in a different way, at a different time, using different equipment, through a modified process, or with another reasonable adjustment.

A written job description prepared before advertising or interviewing applicants is evidence of essential functions, but it is not conclusive. The city’s actual work practices, the purpose of the position, the consequences of not performing a duty, the number of employees available to perform it, and the experience of current or former employees also may be considered.

Q7: What limits does the ADA place on medical examinations and disability-related inquiries?
A: The ADA applies different rules at three stages of employment.

Before a conditional job offer: The city may not ask disability-related questions or require medical examinations. It may ask whether an applicant can perform specific job functions, with or without reasonable accommodation. It may ask an applicant to describe or demonstrate how the applicant would perform a specific job function if all applicants are asked the same question.

After a conditional offer but before employment begins: The city may make disability-related inquiries and require medical examinations if it does so for all entering employees in the same job category. These inquiries and examinations do not have to be job-related or consistent with business necessity.

After employment begins: The city may make disability-related inquiries or require medical examinations only when they are job-related and consistent with business necessity. The city also may ask about an employee’s ability to perform job-related functions.

A city may withdraw a conditional job offer based on post-offer medical information only when the individual cannot perform essential job functions with or without reasonable accommodation, would pose a direct threat that cannot be eliminated or reduced through reasonable accommodation, or is excluded for another lawful, job-related reason.

A city may not withdraw an offer based on speculation that an applicant may have future injuries, future attendance problems, future workers’ compensation claims, or increased health-care costs.

After employment begins, a medical inquiry or examination may be appropriate when objective evidence indicates that an employee may be unable to perform an essential function or may pose a direct threat because of a medical condition. All medical information must be maintained in a confidential medical file separate from general personnel records.

Tests for current illegal drug use are not medical examinations under the ADA. If a test reveals a lawfully prescribed medication or other medical information, that information must be treated as confidential medical information.

Q8: Does the ADA require written job descriptions?
A: No. The ADA does not require employers to develop or maintain written job descriptions. However, cities should maintain current written job descriptions for every position.

A written job description prepared before advertising or interviewing applicants is evidence of essential job functions. The description should accurately reflect the actual job, distinguish essential functions from marginal duties, and identify objective work requirements.

Job descriptions should focus on the result or outcome of a job duty, rather than only on the customary way the work is performed. A reasonable accommodation may allow an employee to perform an essential function differently, with different equipment, at a different time, or through a modified method.

Cities should review job descriptions when there are material changes in duties, staffing, equipment, technology, service-delivery methods, work locations, or operational requirements.

Q9: Is testing for illegal drug use permissible under the ADA?
A: Yes. A test for the current illegal use of drugs is not a medical examination under the ADA. A city may conduct drug testing of applicants or employees and may make employment decisions based on results, subject to city policy, collective-bargaining agreements, Tennessee law, constitutional standards applicable to public employers, and other applicable law. The ADA does not itself require, prohibit, or authorize drug testing.

If testing reveals the use of a lawfully prescribed medication or other medical information, the city must keep that information confidential and separate from the regular personnel file.

Q10: How does the ADA affect workers’ compensation programs?
A: Workers’ compensation eligibility and ADA coverage are separate questions. An employee may receive workers’ compensation benefits without having an ADA disability. An employee also may have an ADA disability even if workers’ compensation does not apply.

After the ADA Amendments Act, a city should not assume that a work injury is outside the ADA because it is temporary, expected to improve, or has not caused permanent impairment. A temporary work injury can qualify as an ADA disability if it substantially limits a major life activity.

An employee with a work-related injury must still be qualified for the position. This means the employee must be able to perform essential functions with or without reasonable accommodation.

The city may need to consider reasonable accommodation, including modified equipment, modified work methods, temporary schedule changes, leave, reassignment to a vacant position, or other effective adjustments, unless the accommodation would cause undue hardship.

Before a conditional job offer, a city may not ask an applicant about workers’ compensation history, prior work injuries, or medical conditions. After a conditional offer, the city may ask about workers’ compensation history or require a medical examination if it applies the same inquiry or examination to all entering employees in the same job category.

A city may not reject an applicant, discipline an employee, or make another employment decision based on speculation that a prior injury may lead to future workers’ compensation costs, future injury, future absenteeism, or an inability to work. Employment decisions must be based on the individual’s present ability to perform essential functions and any actual direct threat that cannot be eliminated or reduced through reasonable accommodation. A city may take appropriate action if an applicant knowingly gives a false answer to a lawful post-offer inquiry about medical condition or workers’ compensation history. Medical information lawfully obtained after a conditional offer may be disclosed to workers’ compensation offices, insurers, second-injury funds, or other entities when permitted by law. The city should limit disclosure to information that is authorized and necessary.

Key sources

• ADA Title I, 42 U.S.C. §§ 12111–12117.
• ADA Amendments Act of 2008.
• EEOC, Fact Sheet: Disability Discrimination.
• EEOC, Questions and Answers: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA.
• 29 C.F.R. § 1630.14, medical examinations and inquiries.