What Is the ADA?

The Americans with Disabilities Act (ADA) is a federal law that makes it illegal for employers, state and local governments, public accommodations, transportation, and telecommunication agencies to discriminate against anyone with a disability. Discrimination means you are treated unfairly or unequally because you have a disability.

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 thought to have a physical or mental impairment that substantially limits one of more major life activities, such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning, or working. Major life activities also include the operation of major bodily functions. 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
• Cell growth
• Digestive, genitourinary, bowel, and bladder functions
• Nervous system, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions

The ADA also 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 that you have a disability, even if you don't.
• You have a relationship with a person who is disabled, even if you do not have a disability yourself. For example, it is illegal for an employer to discriminate against you because your spouse or child has a disability.

The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces the ADA. Later in this article, we’ll talk more about what to do if you think your employer is not following the ADA.

Does the ADA Apply to All Employers?

The ADA applies to all public and private employers with 15 or more employees and to all state and local government employers, regardless of how many employees they have. 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.

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

It is also illegal for an employer to retaliate against, or get back at, you for asserting your rights under the ADA. So you are protected when you do things like tell your employer you have a disability, ask for 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 accommodations at your workplace or when you apply for a job, unless doing so would be an undue burden or hardship to the employer. An undue burden means it would be very difficult or very expensive for the employer to give you the accommodation you ask for.

To learn more about jobs and how to request reasonable accommodations, see DB101’s article on job accommodations.

Who Is Protected Under the ADA?

You are protected under the ADA, if you have a disability (see the section How Does the ADA Define Disability? above) and you are qualified to perform the essential functions or duties of a job. This means two things:

1. You must meet certain conditions that the employer needs job applicants to have, such as education, work experience, skills, or licenses.
2. You must be able to perform the fundamental duties of the job with or without reasonable accommodations. 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.

Where Can You Learn More About the ADA?

The opportunity to participate in the employment process is a right guaranteed by both state and federal law. The federal law is Title I of the Americans with Disabilities Act (ADA) of 1990. The federal agency that enforces the employment discrimination part of the ADA is the Equal Employment Opportunity Commission (EEOC).

The EEOC has numerous publications that can help you learn more about your rights, including:

• The ADA: Your Employment Rights as an Individual with a Disability
• Disability Related Inquiries and Medical Exams of Employees (EEOC Guidance)
• Reasonable Accommodation and Undue Hardship (EEOC Guidance)

The Americans with Disability Act (ADA) makes it illegal to discriminate against people with disabilities. Discrimination happens when you are treated unfairly or unequally because of your disability. 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, such as
  • A job
  • A promotion
  • A competitive salary
• Unintentionally denying you job opportunities or benefits
• Retaliating against you (getting back at you) because of your disability, which 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
  • Harassment, which means bothering you with unwanted actions or demands
• Interfering with you, which means making it impossible for you to enjoy the same rights and benefits at work as your nondisabled coworkers

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.

Retaliation by an employer may happen if a person with a disability or someone on their behalf filed a complaint, gave evidence, or otherwise participated in an investigation to enforce the ADA.

How Do I File a Complaint?

If you believe you have been discriminated against because of your disability, you can file a complaint with the EEOC or the California Civil Rights Department (CRD).

You have to file your discrimination complaint within a certain amount of time or you lose your right to sue. To file your complaint with the EEOC, you have to do so within 300 days (or 10 months) of the date you were discriminated against. You should not wait for the deadline to get too close; file your complaint as soon as you have decided that it is necessary to do so. Contact information for the EEOC is included later in this article.

If it is proven that you have been discriminated against, you have the right to a solution that will place you in the position you would have been in if the discrimination had never happened. This means you may be entitled to get hired, back pay, or reasonable accommodations. You may also qualify to have the employer pay your lawyer’s fees. To find out whether you qualify as having been discriminated again, contact the EEOC or CRD.

California, the ADA, and the FEHA

California's definition of disability is broader than the federal standard. California’s disability laws and rules direct private businesses and nonprofits, as well as the government, to go beyond the ADA, giving additional protections to employees of businesses in California. The law that addresses the rights of persons with disabilities and the obligations of employers in California is the Fair Employment and Housing Act (FEHA). The California Civil Rights Department (CRD) is the office charged with helping you with the FEHA.

Equal Employment Opportunity Commission (EEOC)

To file a discrimination charge through the EEOC, you can contact any EEOC field office, located in cities throughout the United States or call them at 1-800-669-4000 (TTY 1-800-669-6820).

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

California Civil Rights Department (CRD)

To file a discrimination charge through the CRD, you can contact them

• By mail at 2218 Kausen Drive, Suite 100, Elk Grove, CA 95758
• By email at contact.center@dfeh.ca.gov, or
• By phone at 1-800-884-1684

The CRD website has a page dedicated to explaining the steps in filing a complaint. It includes links to contact them.

The California CRD provides a great deal of information online, including:

• How to file a claim
• Details about employment issues
• Summaries of California laws for people with disabilities
• Links to the actual texts of California disability laws and regulations

Protection and Advocacy

You can also contact Disability Rights California when you have questions or problems with reasonable accommodations at work or when you think you are being treated unfairly because of your disability.

Additional Resources

In California, the Department of Rehabilitation (DOR) can give you additional information about the ADA and other laws that protect your rights.

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 employees up to 12 weeks of unpaid leave a year for specific reasons. To take the leave, you must have recently had a child, have a serious health condition, or be taking care of a family member with a serious health condition.

In these situations, the leave must be “job-protected,” which means that after the leave, you must be allowed to return to your original job or be given another job that is similar. The FMLA also requires that these employers keep you on group health care benefits during your leave.

Which Employers Does the FMLA Cover?

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 (or 1 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 weeks (or 3 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 an 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, a covered employer must give you up to a total of 26 weeks (or 6.5 months) 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 weeks of leave (or 26 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 one block of time as long as the leave is for one reason. For example, someone might arrange to take leave over time in order to have regular treatments for cancer. It may also be possible for you to continue working but use FMLA leave to lower 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.

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 involves one or more of the following reasons for absence:

• You are getting inpatient care.
• Following inpatient care, you have a “period of incapacity,” which means that you are unable to do the basics of your job, attend school, or take care of yourself.
• You get follow-up treatment connected with inpatient care.

You get treatment for a condition that makes you unable to work for longer than 3 consecutive days – whether they are work or nonwork days doesn’t matter – and

• You get that treatment 2 or more times within a 30-day period or
• That treatment is “continuing,” involving, for example, a prescription or 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 doctor’s visits at least twice a year
  • May involve occasional times of incapacity, which means you’re unable to do the basics of your job or to perform other life activities

• You get continuing 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, if not treated for more than 3 days, would probably leave you incapacitated.

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.

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 (1 month) 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 because you are pregnant, you have been hospitalized overnight, or 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 illegal for an employer to stop you, fire you, or discriminate against you (treat you unfairly or unequally) when you exercise your rights under the FMLA.

California Family Rights Act (CFRA)

The California Family Rights Act (CFRA) authorizes eligible employees to take up a total of 12 weeks of paid or unpaid job-protected leave during a 12-month period. While on leave, employees keep the same employer-paid health benefits they had while working. Eligible employees can take the leave for one or more of the following reasons:

• The birth of a child or adoption or foster care placement of a child.
• To care for an immediate family member (spouse, child or parent) with a serious health condition.
• When the employee is unable to work because of a serious health condition (SHC).

A serious health condition is an illness, injury, impairment, or physical or mental condition that causes or requires:

• Any period of incapacity or treatment in connection with, or after inpatient care
• Any period of incapacity requiring absence from work, school, or other regular daily activities, of more than 3 consecutive calendar days
• Ongoing treatment by or under the supervision of a health care provider for a chronic or long-term health condition that is incurable
• Restorative dental or plastic surgery after an accident or injury

For a full explanation of the CFRA, you can read the Family Care and Medical Leave and Pregnancy Disability Leave Poster.

There are 4 major differences between the Federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA):

1. Pregnancy as a “Serious Health Condition” (SHC):
   FMLA: Covered as a serious health condition under the Family and Medical Leave Act (FMLA).
   CFRA: Pregnancy itself is not covered as a SHC. Instead, in California, a pregnant employee is entitled to a Pregnancy Disability Leave (PDL) of up to 4 months (16 weeks). Employers need to have only 5 or more employees for them to be subject to this Act, and there is no eligibility period for employees. The eligible CFRA employee can then take a 12-week CFRA baby bonding leave. The first 12 weeks of PDL can run concurrently with FMLA for eligible employees, and for that period, employers need to keep eligible employees health benefits.
2. Registered Domestic Partners Equal to Spouses
   FMLA: Not covered.
   CFRA: Covered under CFRA, registered domestic partners are covered just like spouses. Note that this may give a domestic partner more family leave.
3. “Qualifying Exigency” because of employee’s or family member’s active military duty
   FMLA: Eligible FMLA employees are entitled to up to 12 weeks (3 months) of leave for “any qualifying exigency” arising because the employee has a family member (spouse, child, parent) who is on active military duty or who has been notified of an impending call to active duty status, in support of a contingency operation. Health benefits are included. The family member must be a member of the Guard, Reserve or be a retired member of the Armed Services.
   CFRA: Not covered under CFRA.
4. Care for Ill or Injured Service Member
   FMLA: Covered. An employee who is the spouse, child, parent, or next of kin of a covered service member may take a total of 26 weeks (6.5 months) of leave during a 12-month period to care for a covered service member who is ill or injured in the line of duty on active duty. Health benefits are included.
   CFRA: Covered under CFRA if family member is a spouse, child, or parent.

California’s Pregnancy Disability Leave (PDL)

This law says employers with 5 or more employees must give you up to 12 weeks (3 months) of unpaid disability leave because of pregnancy, childbirth, or a related illness. California Pregnancy Disability Leave (PDL) also requires that employers supply you with a reasonable accommodation and transfer you to a less hazardous or strenuous job. However, employers can deny any reasonable accommodation request if they can prove it would be an undue burden.

California’s Paid Family Leave (PFL)

This law gives temporary disability insurance to those who take time off of work to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new child. It is administered by the State Disability Insurance (SDI) program. It provides up to eight weeks of Paid Family Leave payments to eligible workers who take time off to care for family members. For details of Paid Family Leave, you can read more on the Employment Development Department website.

Note: Before July 1, 2020, you could only have six weeks of PFL per year.