When Does The ADA Apply

 

By Albert L. Kelley

 

Last week I advised that under the ADA there were three terms we needed to understand. First, employers. The law only applies to those employers who employ 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. The law does not apply to small business. If the employer has 14 or fewer employers, the law does not apply to them. Likewise, if the business hires over 15 employees, but only for a total period less than 20 weeks in two years (for example, a Christmas gift wrapping business may need large numbers of employees for only about 4 weeks a year), they will not have to comply with the Act.

 

 

Second, disability. The term disability means a physical or mental impairment that substantially limits one or more of the major life activities of such individual; or a record of such an impairment; or being regarded as having such an impairment. This means that if a person does not have a disability, but is perceived to have one, they are still covered by the Act. This also means that if an employee has a problem that is controlled by medication they are protected by the Act. However, employers are not required to make accommodations for disabilities they are not aware of. If the employee suffers from an illness that is not disclosed or readily observable, such as depression perhaps, there is no obligation to assist the employee. It is generally held that it is up to the employee to disclose their disability and to request accommodation. Regardless of disability, the person must be qualified to do the job. If the job requires an education, an uneducated person will not be covered by the Act regardless of their physical or mental condition.

 

 

Third is major life activity. A major life activity means things such as walking, sitting, seeing, hearing, performing manual tasks, caring for oneself, learning and working. Working, while a major life activity, is the last item thought about. Just because a person is unable to perform one job, does not make him disabled to perform others. As an example, a Supreme Court decision held that carpel tunnel syndrome, while hindering a person from doing a particular job, did not make them disabled. They could still perform other jobs. The Court explained that there must be an impairment that “prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives, such as walking, seeing and hearing.”

 

 

The fourth term is mental impairment. The Act defines a mental impairment as any mental or psychological disorder, such as major depression, bipolar disorder, anxiety disorder, schizophrenia, and personality disorders. What is not considered a disability? The Act specifically excludes sexual behavior disorders and gender identity issues as well as compulsive gambling, kleptomania, pyromania and active drug use, although recovering drug addicts are covered, as are recovering alcoholics.

 

 

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” and “Basics of Florida’s Small Claims Court” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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