ADA: Frequently Asked Questions (2)

Q11: Is time off under the ADA a reasonable accommodation? What if the employee has exhausted FMLA leave?
A: Yes. Leave may be a reasonable accommodation under the ADA, including leave after an employee has exhausted available FMLA leave, city-provided leave, or other leave benefits.

The FMLA generally provides eligible employees up to 12 workweeks of unpaid, job-protected leave during an applicable 12-month period. Military caregiver leave may provide up to 26 workweeks in a single 12-month period for an eligible employee who is caring for a covered servicemember with a serious injury or illness. The end of FMLA leave does not automatically end the city’s obligations under the ADA.

A “serious health condition” under the FMLA and a “disability” under the ADA are different legal standards. An employee may have a serious health condition without an ADA disability, and an employee may have an ADA disability without meeting the FMLA eligibility requirements. For example, an employee who has not worked long enough to qualify for FMLA leave may still be entitled to ADA accommodation, including leave, if the employee has a qualifying disability and is otherwise qualified for the position.

Before ending employment because an employee cannot return after FMLA or other leave expires, the city should conduct an individualized ADA review. The review should consider:

• Whether the employee has an ADA-covered disability.
• Whether additional leave is medically necessary.
• Whether the employee has a reasonably anticipated return-to-work date.
• Whether the employee is expected to be able to perform essential functions with or without accommodation when leave ends.
• Whether a modified schedule, intermittent leave, telework, reassignment, or another accommodation would be effective.
• Whether the requested leave or other accommodation would create undue hardship.

A finite period of additional leave may be reasonable. The ADA does not ordinarily require indefinite leave with no reasonably anticipated return date, but the city should not automatically reject an extension merely because the expected return date changes.

Q12: Should the city use an ADA accommodation request form?
A: A written reasonable-accommodation request form can be helpful, but it should be voluntary. An employee does not have to use a particular form or use words such as “ADA,” “disability,” or “reasonable accommodation” to request a workplace adjustment.

A form can help the city document:

• The employee’s name, position, department, and supervisor.
• The work-related limitation or barrier identified by the employee.
• The requested workplace change or accommodation.
• The essential functions or work requirements affected.
• The date of the request and HR follow-up.
• Whether medical documentation is needed.
• Potential accommodations discussed and the final decision.
• Implementation and follow-up dates.

The form should not require an employee to disclose a full diagnosis or unnecessary medical history. If the city requests medical documentation, it should seek only information that is job-related and necessary to evaluate the disability-related limitation and need for accommodation.

The city should include the EEOC’s GINA safe-harbor notice whenever it asks an employee or health-care provider for medical information. City legal counsel or the city’s risk-management provider should review the form before implementation.

Q13: May a city use scientific, medical, or statistical evidence to determine whether a condition is covered by the ADA?
A: Yes, when appropriate. However, the ADAAA and EEOC regulations direct that the determination of whether an impairment substantially limits a major life activity should not demand extensive analysis.

In most cases, comparing an employee’s ability to perform a major life activity with that of most people in the general population will not require scientific, medical, or statistical evidence. A city may use relevant medical, scientific, or statistical information when useful, but it should not impose unnecessary evidentiary burdens on the employee or delay the accommodation process while seeking elaborate proof.

The practical focus should be on the employee’s actual work-related limitation, the job’s essential functions, and whether a reasonable accommodation would be effective. The city may request reasonable medical documentation when the disability, functional limitation, or need for accommodation is not obvious.

Q14: May an employer request medical documentation when a disability or need for accommodation is not obvious?
A: Yes. When an employee requests accommodation and the disability, work-related limitation, or need for accommodation is not obvious, the city may request reasonable medical documentation.

The city should request only the information necessary to determine:

• Whether the employee has an ADA-covered disability.
• The employee’s functional limitations related to the job.
• Whether the employee needs accommodation.
• The expected duration of the limitation, if relevant.
• Whether the requested accommodation, or another accommodation, would help the employee perform essential functions or access a workplace benefit.

The city should not request complete medical records, unrelated diagnoses, genetic information, family medical history, or more information than is necessary. It should include the GINA safe-harbor notice with any request for medical information.

Medical documentation should be reviewed by HR, the ADA coordinator, the leave administrator, or another designated official—not by the employee’s immediate supervisor. The information must be kept confidential and separate from the regular personnel file.

Q15: If the focus is on accommodation rather than the condition, should the city assume every request is legitimate without evaluating ADA coverage?
A: No. The city may evaluate whether the employee has an ADA-covered disability and whether accommodation is needed. However, the ADAAA requires the definition of disability to be construed broadly and generally should not require extensive analysis.

The city should not reject an accommodation request simply because the condition is temporary, controlled by medication, intermittent, in remission, uncommon, or not obviously severe. The city should conduct an individualized review of the employee’s impairment, functional limitation, essential job functions, requested accommodation, and possible effective alternatives.

When the disability and need for accommodation are obvious, the city should focus promptly on effective accommodation rather than demand unnecessary documentation. When the disability or need is not obvious, the city may request reasonable documentation.

Q16: Must the city accommodate an employee whose disability affects a major life activity that is not itself required for the job?
A: Yes. A disability may substantially limit a major life activity or major bodily function that is unrelated to the employee’s specific job duties. The employee may still be entitled to reasonable accommodation if the disability creates a workplace barrier or affects the employee’s ability to perform essential functions, comply with a workplace requirement, or access a benefit or privilege of employment.

For example, an employee with an immune-system impairment may be protected under the ADA even though immune-system function is not an essential job duty. The city may need to consider an effective accommodation, such as workspace changes, exposure-reduction measures, protective barriers, modified work practices, remote work where feasible, schedule changes, or leave. The proper accommodation depends on medical information, job duties, available alternatives, and undue hardship.

The city is not required to provide an accommodation that does not address a disability-related workplace limitation or that would create undue hardship.

Q17: Must a city allow a pregnant employee to work from home?
A: Not automatically. However, telework may be a reasonable accommodation under the ADA, the Pregnant Workers Fairness Act (PWFA), or both, depending on the employee’s limitations, job duties, and the city’s ability to show undue hardship.

Pregnancy itself is not automatically an ADA disability. A pregnancy-related impairment may qualify under the ADA if it substantially limits a major life activity. Separately, the PWFA requires covered employers, including state and local government employers with 15 or more employees, to provide reasonable accommodation to qualified employees and applicants with known limitations related to pregnancy, childbirth, or related medical conditions, unless doing so would cause undue hardship. A PWFA limitation does not have to be an ADA disability.

The city should consider telework when it would enable the employee to perform the essential functions of the position effectively. Relevant considerations include:

• Whether essential duties can be performed remotely.
• The employee’s actual pregnancy-related limitation.
• Whether in-person presence is essential.
• Whether temporary telework, a hybrid schedule, modified hours, reduced travel, light duty, temporary reassignment, or another accommodation would be effective.
• Whether the proposed arrangement would create undue hardship.

The city should not deny telework simply because it has not allowed telework previously or because the employee is pregnant. It also should not approve telework automatically without determining whether the job can be performed effectively outside the regular worksite.

Q18: When may an employer ask an applicant to self-identify as having a disability?
A: Before a conditional job offer, an employer generally may not ask an applicant whether the applicant has a disability. Limited exceptions apply.

For example, a federal contractor or subcontractor subject to affirmative-action requirements under Section 503 of the Rehabilitation Act may invite applicants to voluntarily self-identify as individuals with disabilities using the required Office of Federal Contract Compliance Programs process. Information obtained through that process must be voluntary, confidential, kept separate from regular personnel records, and used only as permitted by law.

A pre-offer disability inquiry also may be permitted when another federal law or regulation requires it, such as a law requiring information to provide a benefit or service to individuals with disabilities. The city should consult legal counsel before using a voluntary self-identification form or making a pre-offer disability inquiry outside an established federal compliance process.

Q19: Can the city offer pregnant employees more leave than it offers employees with other temporary disabilities?
A: The city must distinguish between pregnancy-related medical leave and parental bonding or child-care leave.

For pregnancy-related medical conditions, Title VII and the Pregnancy Discrimination Act require the city to treat employees affected by pregnancy, childbirth, or related medical conditions the same as other employees who are similar in their ability or inability to work. The city may not provide less favorable leave, light duty, modified duty, benefits, or other treatment because an employee is pregnant.

The PWFA may require a covered city to provide leave or another reasonable accommodation for a known limitation related to pregnancy, childbirth, or a related medical condition unless it creates undue hardship. The city may not require an employee to take leave if another reasonable accommodation would allow the employee to continue working without undue hardship.

For parental bonding or child-care leave, the city should provide equivalent leave benefits to similarly situated mothers and fathers. A city should not provide more bonding or child-care leave to mothers than fathers based solely on sex. Medical recovery leave related to pregnancy or childbirth may be treated differently from bonding leave because it is tied to the employee’s medical condition.

The city should have its attorney or risk-management provider review any policy that provides pregnancy-specific leave benefits beyond those available for other medical conditions or parental leave.

Q20: Can the city discipline a pregnant employee for performance or attendance problems?
A: A city may enforce legitimate, job-related performance, conduct, attendance, and safety standards for pregnant employees, so long as it applies those standards consistently and complies with the ADA, Title VII, FMLA, PWFA, and other applicable laws.

The city should not assume that pregnancy excuses all performance or attendance problems. However, before discipline, it should determine whether the problem involves a pregnancy-related limitation, a request for accommodation, protected FMLA leave, or another protected right.

For example, if a pregnant employee is late because of severe nausea, misses work for prenatal appointments, needs additional breaks, has a lifting restriction, needs a schedule change, or cannot perform a particular physical task temporarily, the city should refer the matter to HR for accommodation and leave review. Under the PWFA, a covered city may need to provide reasonable accommodation, such as additional breaks, modified schedules, light duty, temporary reassignment, temporary suspension of certain duties, telework where feasible, or leave, unless it can demonstrate undue hardship.

The city may not count FMLA-protected absences as attendance violations or negative performance factors. It also should not automatically count pregnancy-related absences or limitations against an employee without first completing the PWFA, ADA, Title VII, and FMLA review.

Q21: Is drug testing permitted under the ADA?
A: Yes. The ADA does not prohibit a city from using reasonable drug-testing policies or procedures for applicants or employees. Tests for the current illegal use of drugs are not medical examinations under the ADA.

A city may use testing to determine whether an employee who formerly engaged in illegal drug use is currently using illegal drugs. Testing and related employment decisions must still comply with city policy, applicable collective-bargaining agreements, constitutional standards for public employers, Tennessee law, and other applicable legal requirements.

If testing reveals lawful prescription-drug information or another medical condition, the city must treat that information as confidential medical information and keep it separate from the employee’s regular personnel file.

Key sources

• ADA Title I, 42 U.S.C. §§ 12111–12117.
• ADA Amendments Act of 2008.
• Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq.
• Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k).
• Pregnant Workers Fairness Act, 42 U.S.C. §§ 2000gg–2000gg-6.
• EEOC, Employer-Provided Leave and the Americans with Disabilities Act.
• EEOC, Pregnancy, Childbirth, or Related Medical Conditions and Workplace Accommodations.