The Americans with Disabilities Act (ADA) is a civil rights law that makes it illegal to discriminate against (treat unfairly or unequally) people with disabilities in all areas of employment. It also guarantees that disabled people have equal access to public services, such as transportation and voting, and equal access to public places, such as restaurants, stores, hotels, airports, and public buildings. The goal of the ADA is for everyone with a disability to be able to live a life of freedom and equality.

The first section of the ADA (often called Title I) applies to employment. It makes it illegal to discriminate against qualified jobseekers or employees with disabilities, and requires employers to make reasonable accommodations to jobseekers and employees with disabilities, unless the accommodation would result in undue hardship to the business. The law applies to all stages of employment, including the job application process, hiring, firing, advancement, compensation, job training, and work-related events. In California, the Fair Employment and Housing Act (FEHA) also protects people with disabilities.

This article will explain the process of making sure your needs are met and your rights are respected when you look for a job, apply for a job, or get a job. This process may include disclosing your disability, requesting reasonable accommodations, negotiating your reasonable accommodations, and taking action if you feel discriminated against.

Agencies That Can Help You

Disability Rights California is a federally designated Protection and Advocacy System for the State of California. Protection and Advocacy Systems are services that make sure the civil rights of persons with disabilities in California are protected. To accomplish this, DRC staff provide technical assistance statewide about the legal provisions of the ADA.

The California Civil Rights Department protects Californians from unlawful discrimination in employment, housing, and public accommodations, and from hate violence. California's definition of a disability is broader than the federal standards, and the state disability laws and rules provide employees more protections that the federal ADA, including employees of smaller companies.

For added details about the ADA and the legal rights it guarantees, see DB101's Know Your Rights and Responsibilities article.

It is your right to choose whether or not you disclose your disability. Disclosing your disability means you are telling your employer – or potential employer – that you have a disability. Your employer does not have the right to ask you about your disability during the hiring process before a job offer is made. Even after a job offer, there are legal limits about when and what an employer can ask about disability.

Whether to voluntarily disclose your disability or not is based on your personal needs, preferences, and comfort level with your disability. It is wise to carefully consider disclosing your disability when you apply for a job, start a new job, become disabled, or become aware that the nature of your disability is changing.

The Benefits of Disclosure

One of the reasons you may decide to disclose your disability is that it lets you request a reasonable accommodation during the application process, to perform the job duties, or to access benefits. When you tell your employer that you have a disability and that you need an accommodation, you begin a process that is unique to you and your particular circumstances.

Another reason that you may choose to disclose your disability to an employer, or potential employer, is if you have an impairment that is readily visible to others. As noted, you are not required to voluntarily disclose your disability during the hiring process or after you have been offered a job. If you decide you want to address your disability upfront, you may be able to educate your employer or the workplace in ways that can avoid some of the stigma, discrimination, and misinformation others may have about your disability.

How Much to Disclose

If you decide to voluntarily disclose your disability to your employer, the amount of information and detail you give your employer about your disability is entirely up to you. When your employer has a legitimate need to know about your disability, it is acceptable to provide only what information is necessary to address the performing of essential job functions. For example, an employer may have a legitimate need to know more about your disability when you ask for a reasonable accommodation. Or your employer may have questions about whether there has been a change in your disabling condition if you stop performing your job safely after having a good safety record. There is no need, in an interview or while employed, to volunteer information beyond what is necessary to facilitate your employer’s legitimate disability-related questions and any reasonable accommodations you ask for.

The Equal Employment Opportunity Commission (EEOC) has information that can provide guidance about whether your employer’s questions are lawful. You can also contact staff at Disability Rights California.

Some employers will accept your request for a reasonable accommodation and not ask for more detailed information about your disability. Other employers may want you to give them specific documentation of your disabling condition, as a basis for the reasonable accommodation. If you cannot show that you have a disability, or that the disability-related accommodation you are requesting is necessary during the hiring process, in performing your job, or in accessing job benefits, the employer has a right to deny the accommodation.

For more information on what to do when your employer asks for medical information when you ask for an accommodation, click here.

The Responsibilities of the Employer

Generally, the only question about your disability that a potential employer is allowed to ask is:

“Can you perform the essential functions of your job with or without reasonable accommodation?”

If you have an obvious disability, or you have voluntarily disclosed your disability to a potential employer, and the employer has a reasonable belief that you would need accommodations because of the disability, he may ask whether you need accommodations and how you would perform the job with those accommodations.

A potential employer cannot ask questions that would require you to give information about your disability during the hiring process. For example, a potential employer is not allowed to ask you:

• How many sick days you were absent from your previous job
• If you have ever applied for Workers’ Compensation
• If you are taking prescription drugs

Once you are offered a job, an employer can require a medical examination, if all employees for that job are asked to pass a medical examination. Attendance may be a requirement of your new job. The employer can also state that you cannot use certain medications while you are at work. However, the employer must justify that these requirements are necessary for that specific job and to conduct its business.

If you tell your employer about your disability and ask for a reasonable accommodation, your employer is allowed to ask for some kind of documentation of your disability to understand how to best accommodate it. However, the employer is never allowed to disclose your disability to anyone, except in cases where managers and supervisors need to know about your limitations or accommodations, as well as first aid and safety personnel who may need to know how to assist or treat you in case of an emergency.

For information about your rights during the job application process, take a look at this EEOC information sheet about Job Applicants and the ADA.

Confidentiality

The ADA requires that employers keep any medical information they have about a disability-related inquiry or medical examination strictly confidential. This includes medical information from voluntary health or wellness programs, and any medical information voluntarily disclosed by an employee. Employers may share such information only in limited circumstances with others directly involved with the operation of the business, for example, supervisors, first-aid and safety personnel, and government officials investigating ADA claims.

Disclosing Is Your Right

Remember, it is your right to choose whether to voluntarily disclose your disability during the hiring process and during employment. However, if you choose not to disclose your disability at the time you determine that you need an accommodation, and you are unable to perform the essential functions of your job, your employer can take disciplinary action, or fire you if you can’t otherwise do your job. If that happens, you cannot claim that the employer discriminated against you because you have a disability.

Keep in mind that there are times when an employer may ask a question about disability without violating the ADA. For example, during a medical examination a prospective employer may ask all applicants for a medical history as part of the examination that they must pass for the conditional job offer. If an employee has been on leave due to an injury or illness, the employer may be able to ask questions about his or her fitness to return to work. If you have questions about what the employer may lawfully ask you about your disability in certain situations, you can consult with Disability Rights California, or review the EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA).

Disclosure Decision Tree

Virginia Commonwealth University has designed a Disclosure Decision Tree tool that can help you decide whether it makes sense to you to disclose your disability to your employer and figure out how to do so. You can practice disclosing your disability with a close friend, family member, or career counselor to help you with your comfort level and skills.

A reasonable accommodation is any kind of change or adjustment to the hiring process, job functions, work environment, or use of assistive technology that makes it possible for a qualified jobseeker or employee with a disability to have an equal opportunity to apply for employment, perform important job duties, meet employment standards, or enjoy the same benefits of employment as co-workers without disabilities.

When Do You Have the Legal Right to an Accommodation?

To have the right to an accommodation under the ADA, you must:

• Work for an employer with 15 or more employees (or a state or local government)
• Be a person with disability or history of a disability as defined in the ADA, and
• Need the accommodation because of your disability.

The California Fair Employment and Housing Act (FEHA) and the Rehabilitation Act of 1973 mean that if you work for a private employer with five or more employees or you are a federal employee, you have the right to an accommodation. Plus, the definition of a disability is broader under California's FEHA.

If you are covered by these laws, they will protect your right to reasonable accommodations in most situations. You must, however, ask for an accommodation. In fact, if you don’t request an accommodation and your job performance suffers, your employer has the right to fire you or take disciplinary action.

While you have the right to reasonable accommodations, you don’t necessarily have the right to get the particular accommodation you ask for. If there are other accommodations that will meet your needs, your employer is free to choose among those effective options. Also, your employer can deny your request for an accommodation if it would cause the employer an undue hardship.

You can always request an accommodation even if you do not meet all of the ADA eligibility conditions. For example, if you do not meet the ADA's definition of disability, you may want to discuss your need for an accommodation with your employer anyway; your employer may offer to work with you to find an accommodation, even if the ADA doesn’t require it.

Why

You should request a reasonable accommodation when there is a barrier that prevents or makes it difficult for you to participate in the hiring process, perform your job, meet a job standard, or access other benefits of employment.

When

You can request an accommodation while applying for a job, after receiving a job offer, after acquiring a disability, or when the nature of your disability or job changes. Keep in mind, however, that you are not required to request a reasonable accommodation until after an employer has made a job offer or after you discover that you need an accommodation to perform the job, which may be after you start working.

If you request a reasonable accommodation before a job offer is made it may be difficult to prove whether the employer denied you the job because there was a more qualified applicant or because it did not want to pay for or go to the trouble of providing accommodations. Not hiring you because you need a reasonable accommodation would be discriminatory. You may want to consider waiting to get the job offer before requesting an accommodation.

What

To request an accommodation, you should first think about your individual needs and then identify reasonable accommodations that you believe will meet those needs. An employer does not have to give you the exact accommodation you request. If more than one accommodation would work, the employer may choose which one to offer to you.

Who

You, a family member, health care provider, or an advocate knowledgeable about your disability can ask your direct supervisor, human resources manager, or other management staff for an accommodation on your behalf.

How

You can request a reasonable accommodation from your employer either verbally or in writing. It may be wise to request the accommodation in writing so you have a record of your request. You can use plain English to make your request; and you don’t have to mention the ADA or use the phrase "reasonable accommodation." But if you use the phrase, “reasonable accommodation” and state this is a request made under the ADA, it will make it very clear. When you request a reasonable accommodation, you have successfully started the “interactive process.” The interactive process is discussed later in this article.

Note: You should consider keeping your own written record of your accommodation requests and any written responses from your employer in case you need documentation should you be denied and choose to file a discrimination charge. If your employer has specific steps and forms related to requesting an accommodation, keep a record of these steps and copies of each form you submit.

Verbal Accommodation Requests

Here are some examples of verbal accommodation requests. They are all requests because they let the employer know that an accommodation is needed to enable the employee to complete his or her essential duties:

• An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing. I’d like to have my starting time rescheduled.”
• An employee tells his supervisor, "I need 6 weeks off to get treatment for a back problem."
• A new employee who uses a wheelchair informs her employer that her wheelchair cannot fit under the desk in her office. She requests an adjustable desk as a reasonable accommodation.

Written Accommodation Requests

Although the ADA does not require you to put your accommodation request in writing, it is always a good idea to document your accommodation requests in case there is a dispute about whether or when you requested accommodation. One way to document an accommodation request is to make a written request.

The ADA does not have specific guidelines or require employers to use specific forms for reasonable accommodation requests or initiating the interactive process. If your employer has forms, you should use the employer’s forms to make your request. If you have any questions about whether your employer is seeking more medical information than is necessary to process your request, contact staff at Disability Rights California to inquire about your rights.

If your employer doesn’t have a form, you can write a letter (or email) that clearly states your request and the medical condition that it is related to. The Job Accommodation Network (JAN) recommends that you include the following in your letter:

• Identify yourself as a person with a disability
• State that you are requesting accommodations under the ADA (or the Rehabilitation Act of 1973, if you are a federal employee)
• Identify your specific problematic job tasks
• Identify your accommodation ideas
• Request your employer's accommodation ideas
• Refer to attached medical documentation, if appropriate or needed
• Ask that your employer respond to your request in a reasonable amount of time

The Responsibilities of the Employer

Reasonable accommodations must be given to applicants and qualified employees regardless of whether they desire or have part-time, full-time, temporary, or permanent positions, or whether they are on probationary status.

After you request an accommodation and your employer agrees to your request, it is your employer’s responsibility to give you that accommodation. For example, if an employer requires employees to attend events outside the office and arranges transportation for those events, it is the employer's responsibility to make sure that the events are accessible to you. This includes the location itself and the transportation to the location.

If the accommodation you need is too difficult or too expensive to get, in relation to the employer's size, financial resources, and the needs of the business (including the size and resources of any parent company), then the employer does not have to give you the requested accommodation. This is called “undue hardship.” The employer can also deny your request if the accommodation prevents you from completing the essential duties of the job.

An employer may not deny you an accommodation just because it involves some cost. Likewise, an employer cannot claim undue hardship based on employees' (or customers') fears or prejudices toward a person’s disability. An employer may not base a claim of undue hardship on the idea that providing one person with a reasonable accommodation might have a negative impact on the morale of other employees.

An employer also has the responsibility to respond to your request in a reasonable amount of time. Although there is no specific amount of time that employers have to respond to a reasonable accommodation request, unnecessary delays to respond to or carry out an accommodation request can result in a violation of the ADA.

Paying for Accommodations

Many accommodations create no additional expense for your employer or are just a one-time cost, such as the purchase of additional equipment. Employers have to pay for the reasonable accommodation. They cannot pass the cost on to you by lowering your salary or paying you less than other employees in similar positions.

When determining whether an accommodation is too costly, the actual cost is what must be considered. For example, an employer who can’t afford the full price of assistive technology may be able to afford it after applying an available tax credit or tax deduction from the Internal Revenue Service. However, if the net cost of an accommodation is too expensive for the employer, the employer will be required to pay the portion that would not result in an undue burden and have the remainder paid by you, a government agency, or a private agency.

More information on where to find help to pay for accommodations can be found later in this article.

Resources for Disclosure and Reasonable Accommodations

The following resources can help you make informed decisions about disclosure and reasonable accommodations:

• The U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) has a highly respected website called the Job Accommodation Network (JAN), an excellent place to start. JAN has information for jobseekers, employees, and employers. It also has links to local organizations. JAN also has a list of accommodations frequently used to help people with different disabilities and a database that can be searched.
• The National Collaborative on Workforce and Disability created The 411 on Disability Disclosure: a Workbook for Families, Educators, Youth Services Professionals, and Adult Allies Who Care About Youth with Disabilities.
• Boston University’s Center for Psychiatric Rehabilitation has a website on reasonable accommodations and disability disclosure for people with psychiatric disabilities.

Your request for a reasonable accommodation can be verbal or submitted in writing. Sometimes the process can be very informal, where you ask for an accommodation and the employer gives it to you. However, this process can also be more formal.

The interactive process is an ongoing dialogue between the employer and the jobseeker (or employee) so that together you can find an effective reasonable accommodation.

Sometimes you and the employer will find more than one accommodation that would work well. If that is the case, the employer may choose the accommodation that is less costly or that is easier to provide in the business.

If you personally don’t request an accommodation, another employee, your spouse, a family member, a health care practitioner, a case manager, or an advocate can make the request on your behalf. If your employer is aware that you need an accommodation, even if you don’t directly request it, he or she should begin a “good-faith” interactive process without delay. For example, if an employee uses a wheelchair and access to a part of the employer’s building will be inaccessible by wheelchair, the employer should begin the interactive process to determine how to accommodate the employee during construction.

The exact steps of the interactive process can differ by organization, department, or specific circumstances of the person with a disability. Here are the most common steps:

1. You request a reasonable accommodation.
2. You and your employer identify the needs and limitations related to your disability.
3. Your employer may ask your medical provider or other professional to document your disability or medical condition.
4. You and your employer identify the nonessential and essential functions of your job.
5. You and your employer find possible accommodations based on your knowledge and experience, outside research, and recommendations by medical providers or other professionals.
6. You and your employer agree upon the effective accommodation(s) based on the essential functions of the job, your preferences, and the employer’s potential financial costs and administrative burden.
7. Your employer must follow through, provide the accommodation, and ensure its effectiveness.

Changes may need to be made to the original accommodation. Therefore, both the employer and employee should keep an open dialogue about whether the selected accommodation is working and, if not, whether changes to the accommodation or new accommodations are needed.

You’ve learned something about when and how to request a reasonable accommodation. Before you actually talk to your employer about getting an accommodation, it can help to learn more about what types of accommodations exist.

Equipment provided to the employee is best when it is “universally designed.” The use of Universal Design equipment ensures that its manufacturer made an extra effort to guarantee that people with diverse abilities can use it.

However, it isn’t always possible to buy universally designed equipment. Many types of new technology are designed without considering people with disabilities. The oversight can create unnecessary barriers. In other situations, even if a product has been universally designed, depending on a person’s disability, they may still need a reasonable accommodation in order to perform their work.

Assistive Technology

Employers may offer a type of accommodation called Assistive Technology (AT). AT includes technology and devices that enable people with disabilities to perform tasks that they would otherwise be unable to accomplish, or would have difficulty accomplishing.

AT covers a wide range of technologies and equipment, including adaptive computer software and hardware, ergonomic and more accessible workspaces, and adaptive safety equipment. Here are some examples of AT that could be used as reasonable accommodations.

• Computer screen-reading software for employees who are blind or have dyslexia
• Adaptive computer equipment that allows people to control a computer's mouse with their head, feet, or eyes.
• Electronic organizers for people with traumatic brain injury or Attention Deficit Hyperactivity Disorder (ADHD)
• Assistive listening devices (ALDs) for employees with hearing loss
• Adjustable height roll-in desks for wheelchair users and for those who need to stand for parts of their work day versus sitting all day

Accessing Assistive Technology

Ability Tools, formerly known as the California Assistive Technology Network (AT Network), keeps track of AT resources and providers in California. Ability Tools can help you locate AT sources for specific disabilities, and refer you to groups that can help you learn more about AT and help you find ways to pay for AT. Ability Tools can help you find answers to questions such as:

• What is Assistive Technology?
• Who are the specialists?
• Where are the service sites?
• Where are accessible sites to:
  • Try equipment
  • Search for employment, and
  • Talk to people who know?

If you visit a local America's Job Center of California (AJCC) (One-Stop), you can ask about and try out the assistive technology the Center has to access Center services and resources. Centers are equipped with computer software and AT equipment to help people who are blind, visually impaired, or who have other physical impairments. These services can help you with a range of job planning activities.

Assistive Technology and California Veterans

The Department of Veterans Affairs offers funding for AT for veterans with disabilities who are eligible. However, it might be best to start checking locally with the California Employment Development Department's Services for Veterans. EDD veterans' representatives help veterans and their eligible spouses make the most of their job and training opportunities. Each local EDD office has a veterans representative available to work with veterans.

Assistive Technology Funding

Usually, your employer will be responsible for paying for and providing assistive technology services that you need to perform your job or satisfy your job standards. However, sometimes people need or want AT that would be too costly for an employer. Alternatively, some people want to be able to keep their AT if they switch employers, because it is specially designed to fit their needs.

In cases where the employer does not pay for AT, you can explore other options from government resources or private grants.

Here are some funding alternatives for AT:

• Medi-Cal helps pay medical expenses for people with disabilities, including Assistive Technology (AT). For AT to be paid for by Medi-Cal, the device must be for a medical condition and be prescribed by a physician.
• The California Department of Rehabilitation (DOR) can fund AT to help a person with a disability find, get, and keep their employment. You must meet their eligibility rules in order to get these services.
• Workers’ Compensation often pays for AT for people with work-related injuries.
• PASS (Plan to Achieve Self-Support) is a program offered by the Social Security Administration for people who get SSI or SSDI. Through PASS, it is possible to save up money for AT without losing eligibility for benefits.

Resources to Learn More about Assistive Technology

• Accessible Technology for All has workplace and assistive technology resource guides.
• Closing the Gap provides professionals, parents, and consumers with information and training to best locate, compare, and implement assistive technology into the lives of persons with disabilities.
• Ability Tools offers a variety of services for Californians with disabilities, including an assistive technology marketplace, device lending libraries, loan programs, and information and referral services. It also provides in-person and webinar trainings, and coordinates the California Assistive Technology Reuse Coalition, which helps connect AT users with gently used equipment.

Specific Technology Resources

• Microsoft has a webpage dedicated to describing accessibility options in its products.
• The National Mobility Equipment Dealers Association (NMEDA) can help you find organizations that sell mobility equipment.

Personal Assistance Services (PAS)

Personal Assistance Services (PAS) are services that another person offers to a person with a disability that assist with activities of daily living. These services can include help with:

• Home activities, such as bathing, dressing, cooking, personal hygiene, and remembering things
• Community activities, such as shopping, going to the doctor, and help getting around
• Work activities, such as reading, sign-language interpretation, and lifting or reaching

In-Home Supportive Services (IHSS)

Most people either pay for Personal Assistance Services on their own or with support from the California In-Home Supportive Services (IHSS) program. In order to have IHSS pay for PAS, you must have a disability or be 65 or older. The program is often seen as an alternative to assisted living or nursing homes. For example, if they determine that you can live in your own home safely, and to do that you need someone to help you with getting up and bathing in the morning, you may qualify to have IHSS pay for your personal assistant. To learn more about PAS and IHSS, read DB101’s IHSS article.

For IHSS, you generally must qualify for Medi-Cal. You may qualify for Medi-Cal in different ways and if you don’t meet Medical's income-based or diability-based income limits because of your income through paid work, you still may be eligible for PAS as part of Medi-Cal's Working Disabled Program. To find out more about Medi-Cal eligibility, read the DB101 article on Medi-Cal.

To find out if you are eligible for IHSS, contact your county In-Home Supportive Services (IHSS) office.

Workplace Personal Assistance Services

You can use workplace Personal Assistance Services (PAS) to help you perform the essential duties of your job. If you need PAS services, they may be considered a reasonable accommodation under the ADA and the employer would have the responsibility to offer PAS services if you request them.

IHSS does not pay for personal assistance at work when it is a reasonable accommodation that should be provided by the employer. However, IHSS might pay for services that are primarily personal in nature and not job related, such as help during meals, with personal care, for bathroom breaks, or with personal hygiene.

Learn more in DB101's Workplace Personal Assistance article.

Funding for Workplace PAS

Workplace PAS are often funded by an employer when they are considered a reasonable accommodation. Additional funding may also be available from the following sources:

• The California Department of Rehabilitation (DOR)
• The Department of Veterans Affairs
• Workers' compensation coverage

Resources on Workplace Personal Assistant Services

• The Job Accommodation Network's Accommodation and Compliance Series answers a series of common questions about workplace Personal Assistance Services and provides links to numerous PAS resources.
• Virginia Commonwealth University’s Rehabilitation Research and Training Center on Workplace Supports and Job Retention has a Personal Assistance in the Workplace: A Customer-Directed Guide Manual.