How to Comply with the
Americans with Disabilities Act: A Guide for Restaurants and Other
Food Service Employers
Supreme Court Opinion in McIver
U.S. Equal Employment Opportunity Commission
The Americans with
Disabilities Act (ADA) is a federal civil rights law that applies to
people with disabilities and protects them from discrimination. The
Equal Employment Opportunity Commission (EEOC), a Federal government
agency, enforces the sections of the ADA that prohibit employment
discrimination. This Guide explains these ADA employment rules for
the food service industry.
The ADA is important to
food service employers and employees. Food service employers must
avoid discriminating against people with disabilities while obeying
strict public health rules. Food service workers with disabilities
have rights under the ADA when applying for jobs or when working for
a restaurant, cafeteria, or other food service employer.
This Guide has three parts:
(1) basic information about the ADA; (2) an explanation of the
relationship between the ADA and the FDA Food Code
(1); and (3) a discussion of the ADA's rules that
prohibit employment discrimination against qualified people with
General Information About the ADA
What is the ADA?
The Americans with
Disabilities Act is a Federal law that prohibits most employers from
discriminating against a qualified person who has a disability.
The EEOC enforces the
employment parts of the ADA. The EEOC has more than 50 offices in
cities throughout the U.S. and in Puerto Rico.
my business covered by the ADA?
The employment provisions
of the ADA apply to businesses that have 15 or more employees on the
This includes full and part-time employees. If you have several
sites that are all owned, operated, and managed by your business,
then you must count all the employees at these sites. But, if you
have different sites that are not owned, operated, or managed by the
same business, then you have to count all the employees only if your
business is an "integrated enterprise." See Appendix E for
information about "integrated enterprises."
Who is protected by the ADA?
The ADA protects a person
with a disability who is qualified for the job.
The ADA does not provide a
list of disabilities. The ADA has a legal test to decide if a person
has a condition that is severe enough to be an ADA disability.
The ADA defines a current
medical condition or disorder (called an
limits a person
doing basic activities (called
major life activities).
The ADA also protects a
person who has a record of a disability or is regarded as having a
include hearing loss, limited eyesight, loss of a limb, or an
illness from a pathogen
(3) transmissible through food, as listed in the FDA
Food Code at section 2-201.11.
In order for an impairment
to be serious enough to be an ADA disability, the impairment must
substantially limit a major life activity.
major life activities
include walking, seeing, hearing, breathing, caring for oneself,
performing manual tasks, sitting, standing, lifting, learning, and
Hanh has severe diabetes that seriously limits her ability to eat.
Even when taking insulin to help manage her diabetes, Hanh must
test her blood sugar several times a day, and must strictly
monitor the availability of food, the time she eats, and the type
and quantity of food she eats, to avoid serious medical
consequences. Hanh has an impairment that substantially limits her
ability to eat. She is a person with a disability under the ADA.
A major life activity is
under the ADA if it is
severely limited either permanently or for a long time
by an impairment. An impairment also may cause
serious, long-term effects
that, in turn, severely limit a major life activity.
Dani contracted Hepatitis A, which led to liver failure and the
need to have a liver transplant. In the eight-month period during
which she has been waiting for a new liver, she has been
substantially limited in her ability to care for herself. Dani is
a person with a disability under the ADA.
The ADA protects people
with serious, long-term conditions. It does not protect people with
minor, short-term conditions.
Chen contracted typhoid fever due to the ingestion of the
bacterium S. Typhi. The symptoms of his illness included high
fever, extreme fatigue, headaches and joint pain. However, he
received antibiotics from his doctor and his condition began to
improve within a week. He completely recovered within a few weeks.
Chen is not a person with a disability under the ADA.
The ADA lets the employer
hire the most qualified person for the job, regardless of
be qualified, a person with a disability must:
meet job-related requirements (such as having the required
education, experience, skills or licenses) and
be able to perform the job's "essential functions" (that is, the
duties that are central to the job) with or without a reasonable
accommodation is a change in the job application
process, in the way a job is performed, or to other parts of the
job (like employer-sponsored training, benefits, or social events)
that enables a person with a disability to have equal employment
opportunities. See questions 20-27 for more about reasonable
Does the ADA allow an employer to consider the difficulty or expense
of a reasonable accommodation?
The ADA requires employers to provide reasonable accommodation to a
qualified person with a disability
unless to do so
would be an "undue
means significant difficulty or expense. A requested reasonable
accommodation poses an undue hardship if:
involves a significant difficulty that disrupts the business;
involves a significant expense; or
requires the employer to change the basic nature of its business.
If the employer can show
that one particular reasonable accommodation will cause an undue
hardship, it is not required to provide that reasonable
accommodation. See question 24 for more on undue hardship.
Ashley applies for a wait staff position at a nightclub. She has a
vision impairment that makes it very difficult for her to see in
dim lighting. Ashley requests, as a reasonable accommodation, that
the nightclub be brightly lit. The employer would probably be able
to show that this accommodation poses an undue hardship. Bright
lights would damage the atmosphere of the club and make it
difficult for the patrons to see the stage shows.
Kyung applies for a job as a cashier at a fast food restaurant.
Kyung is qualified for the job in every way, but the employer is
reluctant to hire him, fearing that Kyung's cleft palate will
offend customers. If the employer refuses to hire Kyung for this
reason, the employer will not be able to show undue hardship. An
employer cannot claim undue hardship based on customers' (or
employees')fears or prejudices about a person's disability.
Does the ADA let employers consider the health or safety of the
employee or co- workers in deciding whether to hire or fire
employees or make other employment decisions?
Under the ADA, an employer may refuse to hire or may terminate a
person who would pose a
"direct threat" to the health or safety of himself
or others in the workplace.
means a significant
risk of substantial
harm. A risk is a direct threat only if it cannot be avoided or
reduced to safe levels by a reasonable accommodation. An employer
must not rely on rumors or on general information about a medical
condition. Instead, an employer must figure out, based on facts,
whether the individual in question poses a direct threat.
Julio delivers pizza for a restaurant. His job requires driving a
delivery car most of the day. Julio's employer often sees him
suddenly falling asleep while waiting at the restaurant for his
next delivery assignment. The employer is concerned that Julio
might fall asleep while driving and cause an accident, hurting
himself and others. When the employer asks Julio about his habit
of falling asleep suddenly, Julio states that he has been
diagnosed with sleep apnea. Based on this information, the
employer may ask Julio medical questions or require that he take a
medical exam to figure out if he is a
when driving. If the medical inquiries or exam reveal that Julio
has an impairment that causes him to fall asleep without warning,
the employer may be able to establish that employing Julio to
drive poses a significant risk of substantial harm to the safety
of Julio and others. In making this determination, the employer
must consider whether there is a reasonable accommodation that
would eliminate the risk or reduce it to a safe level.
The ADA and Diseases Transmissible Through Food
The FDA Food Code addresses
the issue of employee health for those employees who work around
food. One of the Food Code's intentions is to protect the public
from diseases transmissible through food. The FDA Food Code
addresses the Big 4 pathogens:
Shiga toxin-producing Escherichia coli
Hepatitis A virus
Under the ADA, the Centers
for Disease Control and Prevention (CDC) must annually publish a
list of infectious and communicable diseases.(4)
The Big 4 pathogens listed in the Food Code are included on the CDC
See Appendix F for more information about the Big 4.
The FDA Food Code also
discusses symptoms of gastrointestinal illness such as diarrhea,
vomiting and fever.
a restaurant business, may I ask an applicant during the job
interview about her health and about diseases transmissible through
food, as listed in the FDA Food Code at section 2-201.11(A)? May I
use the FDA Food Code's "Model Form 1-A" before making a job offer?
It is too early to ask these questions at the job interview. The ADA
prohibits it. At the job interview, you should decide if the person
is qualified for the job. See question 13.
The best course of action
is to follow the guidance of Model Form 1-A, which says food
employers should ask questions about symptoms and diseases
transmissible through food only after a conditional job offer has
After I make a conditional job offer, may I ask about diseases
transmissible through food or use Model Form 1-A?
After you make a conditional job offer, you may ask about diseases
transmissible through food. You may ask questions about an
applicant's health and require a medical exam. You must treat all
applicants in the same
job category the same.
Carla and Anjali both apply for wait service jobs at a diner.
Carla coughs throughout the interview. The owner tells both women
he intends to hire them. He then requires Carla, but not Anjali,
to fill out Model Form 1-A (which asks about foodborne illnesses.)
This would violate the ADA, which requires that the employer treat
all applicants for wait staff positions the same.
You also may ask medical
questions of a current
employee, as explained in question 9.
May I cancel a conditional job offer without violating the ADA if an
applicant is diagnosed with an illness due to one of the diseases
transmissible through food, as listed in the FDA Food Code at
If the applicant is
diagnosed with an illness due to one of the diseases listed in the
Food Code (the Big 4) and
is disabled by that illness,
you must follow the requirements of the ADA.
steps to follow:
If the applicant is disabled by the illness, then you may cancel
the job offer only
is for a food handling job; and
determine that either there is no reasonable accommodation that
would eliminate the risk of transmitting the disease through food,
or any such accommodation would be an undue hardship to your
If, however, the applicant
has one of the diseases listed in the Food Code, but does not have
an ADA disability,
the requirements of the ADA do not apply.
May I require a current employee to report whether he has a disease
transmissible through food as listed in the FDA Food Code or to fill
out Model Form 1-A from Annex 7 of the FDA Food Code?
Yes, you may require
current employees to make these reports. The ADA itself recognizes
the danger to public health presented by diseases transmissible
through the handling of food. See 42 U.S.C. . 12113(d)(1) and (2).
The ADA also says that you may follow any state, county or local
food handling law designed to protect the public health from the
infectious and communicable diseases identified by the CDC. See 42
U.S.C. . 12113(d)(3). Such state, county or local food handling laws
may include the Food Code's reporting requirements.
Therefore, food service
employers who follow the FDA Food Code reporting requirements do not
violate the ADA. The FDA Food Code reporting requirements are:
section 2-201.11(A), an employee has to
he is diagnosed with an illness due to one of the Big 4 listed
section 2-201.11(B), an employee has to
he has any symptomsrelating
to intestinal illness, boils or infected wounds.
section 2-201.11(C), an employee has to
report if he
has had a past illness
due to one of the listed pathogens.
section 2-201.11(D), an employee has to
report if he
meets one of the specific
for becoming ill due to one of the four listed pathogens.(6)
section 2-201.13, an employee must get a
before the employer may lift the employee's exclusion or
You may also ask medical
questions of a particular employee who handles food if you have an
objective factual basis, i.e., concrete reasons, for linking the
employee's medical condition to workplace safety or job performance.
For example, if you see that an employee is vomiting or has other
symptoms of a gastrointestinal illness, you may ask her if she has
one of the Big 4 diseases. You have an objective reason to believe
that the employee may pose a risk to workplace safety because you
have observed the symptoms that the FDA has determined are likely to
transmit one of the listed foodborne illnesses.
The ADA and the Food Code's Provisions on
"Exclusions" and "Restrictions"(7)
Under the FDA Food Code, a
food employee must report if he has certain symptoms, including
diarrhea, fever, vomiting, jaundice, or sore throat with fever,
which are associated with a gastrointestinal illness. An employee
with such a symptom must be
performing certain duties, including food handling. The restriction
must remain in place until the employee is free from the suspected
infectious agent. You should review the FDA Food Code, section
2.201.13, for a complete explanation of how to remove restrictions.
A food employee also must
report if he is diagnosed
with an illness due to one of the Big 4 pathogens.
If he is, he must be excluded from the food establishment. The
exclusion may be removed if the employer obtains approval from the
regulatory agency that has authority over the establishment, and the
employee provides written medical documentation that he is free from
the pathogen and can work as a food employee. See FDA Food Code,
section 2.201.13 for a complete explanation of how to remove
Most people who have a
disease resulting from the Big 4 pathogens are not disabled by them.
These diseases are usually short-term and/or minor. If a person does
not have an ADA disability, the food service employer may follow the
Food Code's guidance on exclusions without considering the ADA.(8)
But, when a person is
disabled by one of the diseases caused by a Big 4 pathogen, the food
service employer must consider the ADA in addition to the provisions
in the FDA Food Code. The ADA says that an employer may refuse to
assign or continue to assign an employee to a job involving food
handling if that employee is disabled by one of the diseases on the
CDC list (which includes the Big 4 pathogens) and if the risk of
transmitting the disease cannot be eliminated by reasonable
accommodation. See 42 U.S.C. . 12113(d)(3).
This means that when an
employee claims to be disabled by one of the diseases listed in the
Food Code and requests reasonable accommodation, you must follow
steps to follow: If the employee is disabled by one of the
diseases listed in the Food Code, you may follow the Food Code's
requirement that the employee be excluded from the food
establishment only if you determine that:
there is no reasonable accommodation that would eliminate the risk
of transmitting the disease while also allowing the employee to
work in his food handling position, or
reasonable accommodations would pose an undue hardship on your
there is no vacant position not involving food handling for which
the employee is qualified and to which he can be reassigned.
See questions 20-27 for
more on reasonable accommodation and undue hardship.
These steps must be
followed even for employees who serve a "highly susceptible
population," for example, older adults obtaining food in a nursing
home or hospital. See FDA Food Code, section 1-201.10(B)(44).
Does the ADA require the employer to hold open a job for an employee
who has been excluded from the food establishment due to the
requirements of the FDA Food Code?
To meet the requirements of
the ADA, you only have to hold the job open if the employee has an
steps to follow:
If an employee is disabled by the disease and has been given a
reasonable accommodation or has been excluded from the food
establishment you must:
return the employee to the full duties of her original position
once the need for the accommodation or exclusion has passed, i.e.,
once the risk of transmitting the disease through food no longer
exists, unless holding the position open would pose an undue
holding the position open for the entire period of the
accommodation or exclusion would pose an undue hardship, you must
determine if there is a vacant equivalent position for which the
employee is qualified and to which she can be returned without
causing undue hardship.
You may fill the job
without violating the ADA if the employee does not have an ADA
disability. However, if you are covered by the Family and Medical
Leave Act, and the employee is eligible for such leave, you may be
required to reinstate the employee. See question 27 for information
about the Family and Medical Leave Act.
An employee reports that she has a symptom of a food-related disease
or actually has the disease. May I mention her name to my other
employees, who now may have to get tested?
the ADA prohibits you from disclosing the name of the employee who
may have caused the exposure to a food-related disease, unless
disclosing the name is required by another Federal law. The ADA says
that medical information is confidential.
You may inform your other
employees that they may have been exposed and may have to be tested.
The head of the wait staff, Hasad, informs his supervisor that he
has Hepatitis A. The supervisor must keep this information
confidential and should not inform the staff that Hasad has
Hepatitis A. The supervisor may, however, inform the staff that a
case of Hepatitis A has been reported and that employees should
continue to take steps for safeguarding public health.
An employer must not keep
medical information in an employee's personnel file. Medical
information should be kept in a separate medical file. Only those
few employees who really need the medical information for
work-related reasons should have access to the file. If the
information is stored in a computer file, the employer should limit
the number of persons who have access to it.
The ADA's Rules About Applying for a Job
Do I have to help an applicant with a disability so that she can
apply for a job?
if the help is requested. The ADA requires that an employer provide
a reasonable accommodation so that an applicant with a disability
can apply for a job. For example, if you use a computer-based
application form and a person with a disability tells you that he
wants to apply for a job but cannot use the computer terminal, you
would have to provide another way for him to apply.
Eliana applies for a bookkeeping position. After reviewing her
resume, the employer decides to interview her and tells her to
come to the second floor office for her interview. Eliana asks
whether the building has an elevator and is told that it does not.
She asks if the interview can be held on the first floor because
she uses a wheelchair. Unless this imposes a significant
difficulty or expense, the employer should accommodate Eliana by
interviewing her on the first floor.
May I ask an applicant questions about her health right away?
Employers may not ask about an applicant's medical condition or
require a medical exam until after deciding that the person has the
necessary job skills and making a conditional job offer. Questions
should focus on ability to do the job. You may ask the applicant if
she can do the job and to describe her skills and experience. You
may ask about gaps in employment and education.
If an applicant has an
obvious disability that may prevent her from doing an important part
of the job, you may ask
her to show or describe how she would perform that job function.
You also may ask if she
will need help to do the job (or a "reasonable accommodation"). But
you may not ask for details about the disability. (For information
regarding the use of Model Form 1-A, see question 6.)
Bakari, whose right hand was amputated, applies for a job as a
host. One requirement of the job is to wrap forks and knives in
cloth napkins that the wait staff then places on tables. The
employer may ask Bakari, even before making a job offer, to show
how she would perform this job requirement or if she might need an
Before I make a job offer, may I find out if the applicant has filed
a workers' compensation claim in the past?
But you may ask about the applicant's medical, disability, and
workers' compensation history after you make a conditional job
offer, as long as you do this for everyone in the same job category.
Before I make a job offer, may I ask if the applicant currently uses
drugs illegally or drinks?
Someone who currently uses drugs illegally is not protected under
the ADA. Therefore, an employer
may ask an
about her current illegal
use of drugs. Questions may involve illegal drugs
(cocaine, crack, heroin) and the illegal use of prescription drugs.
An employer also may require an applicant to take a drug test. (If
the drug test is positive, the employer may validate the test
results by asking about lawful drug use or other possible
explanations for the positive result, other than the illegal use of
An employer also may ask an
applicant whether she
drinks alcoholic beverages.(10)
Before I make a job offer, may I ask if the applicant is an
alcoholic or a former drug addict?
Alcoholism and past drug addiction may be disabilities. The ADA does
not allow questions about disabilities before making a conditional
job offer. (But you may ask about current illegal use of drugs and
whether the applicant currently drinks alcohol. See question 15.)
have made conditional job offers to several people and obtained
basic medical information from each of them. May I require a
follow-up medical exam of just one person?
you may require a follow-up examination of just one person if the
exam is medically related to the basic information already obtained
in the first medical inquiry or exam.
XYZ cafeteria gives Fletcher and Yvette conditional job offers of
employment for kitchen positions. Fletcher writes on Model Form
1-A that he recently returned from a trip out of the country where
he was exposed to typhoid fever. Yvette's completed form did not
report any disease or exposure. Fletcher is not sick, but because
of what Fletcher disclosed on Model Form 1-A, XYZ may conduct a
follow-up medical exam to figure out whether he is carrying a
food-related disease. It does not have to conduct a similar exam
May I take away the conditional job offer solely because the medical
exam shows that the person has a disability?
You may not take away a job offer solely because a person has a
disability. If you believe that the disability will prevent the
person from performing the essential functions of the job or raise a
safety issue, you should not automatically take away the conditional
job offer. Instead, you need to figure out if there is something you
can do change how the job is done, let the person take breaks, and
so forth so that the person can do the job without posing a direct
threat. You may only withdraw the job offer if there is no
accommodation that would allow the person to perform the essential
functions of the job without posing a direct threat or an undue
Jacob applies for a kitchen job, is qualified, and is given a
conditional offer. Jacob discloses that he is diabetic and wears a
medical-alert bracelet. The restaurant manager knows that section
2-303.11 of the FDA Food Code prohibits employees involved in food
preparation from wearing jewelry on their arms and hands,
including medical-alert bracelets. As a reasonable accommodation,
the manager should allow Jacob to wear the medical-alert tag as a
If a person is HIV positive or has been diagnosed with AIDS, may I
take away the conditional job offer?
You may not take away a conditional job offer made to a HIV-positive
person or to any other person for disability-related reasons if the
person can do the job safely or if there is a reasonable
accommodation that will enable him to do the job without posing a
direct threat. HIV is not listed on the CDC list or in the FDA Food
Code as a disease transmissible through the food supply. Fear about
HIV or AIDS, or concern about others' reactions, does not justify
taking away a job offer.
In response to post-offer questions from the employer, Luka
discloses that he is HIV-positive. HIV is not listed as one of the
foodborne illnesses on the CDC list. The employer may not take
away the conditional job offer because it is concerned about
co-worker reactions or because it assumes that someone with HIV
would tire too easily.
What is a reasonable accommodation?
A reasonable accommodation
is a change to the job application process, in the way a job is
done, or to other parts of the job (like employer-sponsored
training, benefits, or social events), that enables a person with a
disability to have equal employment opportunities.
The applicant, the
employee, a health care provider, a relative, a friend, or another
representative acting on behalf of the applicant or employee, may
request the reasonable accommodation.
If an employee or her representative NEVER requests a reasonable
accommodation, do I have to give one?
However, if you are aware that an employee may need an accommodation
but is unable to ask for one due to his disability, you may have to
start the reasonable accommodation discussion with the employee.
Abner has Down's Syndrome and works in a utility position. Every
day, the manager talks to the utility staff about specific tasks.
The manager, who knows that Abner has Down's Syndrome, notices
that Abner performs several of his assigned tasks but as the day
goes on, forgets to perform other tasks. Because of his
disability, Abner may be unable to remember his assignments and
unable to request a reasonable accommodation to change how
assignments are made. In this case, the employer may need to raise
the matter with Abner.
An employee's doctor sent me a note saying the employee needs some
special help at work because of a medical condition, but the doctor
never said the employee needed a "reasonable accommodation." Is this
a request for accommodation?
The ADA does not require an applicant, employee, or a representative
to say the words "reasonable accommodation." The worker or a
representative must tell the employer that he needs
a change at work for a reason
related to a medical condition. If a representative
makes the request, the employer should discuss the matter with the
worker as soon as possible.
Querida injured her back in a car accident and was out of work for
several months. She is ready to go back to her restaurant job as
an alley coordinator, where she reviews and garnishes plates from
the cooking line and ensures all food is correct, cooked properly,
and ready to eat. Querida's mother calls the restaurant just
before Querida returns and informs the manager that Querida's
injury is permanent and that it is very painful for her to stand
for long periods of time. She will need to sit 10 minutes for
every hour that she stands. Although Querida did not make the
request herself, the restaurant will have to consider whether it
can provide her with this or some other reasonable accommodation.
The restaurant also may request that Querida provide medical
documentation establishing that she has a disability and needs a
request does not have to be in writing.
It can be communicated during a spoken conversation, through a sign
language interpreter, or in other ways. The employer must consider a
request for accommodation as soon as it is made, whether orally or
However, the employer may
request the employee or applicant to submit a written confirmation
of the request for record-keeping purposes.
The employer needs to take
the request seriously and treat it as the first step in finding an
effective accommodation. But the employer is not always required to
give the employee exactly what he wants.
My assistant manager has a back problem and says that she needs
extra breaks during the day to do special stretching exercises
recommended by her doctor. I don't know if her back problem is
serious enough to be an ADA disability. What should I do?
Often, it makes business
sense to work with a person (like the assistant manager) who has an
impairment and asks for a reasonable accommodation (like extra
breaks), instead of focusing entirely on whether she has a
disability and is protected by the law. See question 3 for the
definition of disability.
But there are some
situations where it is clear that a person has a disability under
Phoebe has an intellectual disability which significantly limits
her ability to think and learn. She would like to apply for a
position as a dishwasher at a local fast food restaurant. The
application process is computerized. Phoebe cannot use the
computer and asks to apply for the job in person. Unless granting
the request would pose a significant difficulty or expense for its
business, the employer should accommodate Phoebe by allowing her
to apply for the position in a different way.
It is also important not to
jump to the conclusion that it would be impossible to accommodate
specific types of disabilities.
Kelsey has an incurable skin condition, called vitiligo, in which
patches of skin turn white and do not produce melanin. These areas
of her skin have no protection from the sun, and they become
painful if exposed to the sun for extended periods of time. Kelsey
applies for a job at a restaurant with a large outdoor seating
area, open from mid-spring through early fall. Well-qualified for
the position, Kelsey receives a conditional offer of employment
and then asks for a reasonable accommodation: being assigned only
to serve inside tables. To decide whether it can provide this
accommodation, the restaurant considers several questions: Is
there enough business inside the restaurant so that Kelsey can
only work inside? Are there enough staff to cover all of the
tables outside if Kelsey only works inside? The restaurant also
should consider other alternatives. For example, if a portion of
the outside patio is in the shade, there may be enough tables
either there alone or in combination with inside tables for Kelsey
to carry a full work load. The restaurant also may ask Kelsey to
provide medical documentation establishing that she has an ADA
disability and needs a reasonable accommodation.
An employee requested an accommodation that would be very difficult
and/or expensive. Do I still have to provide it?
You do not have to provide
a reasonable accommodation if doing so will be an undue hard- ship.
Undue hardship means significant difficulty or expense, significant
disruption of the business, or a change to the basic nature of the
business. See question 4 for more on undue hardship.
If the person with a
disability asks for a reasonable accommodation that is an
for your business, you must decide if there is another accommodation
that is less difficult or expensive.
Grace works as the morning manager of a cafeteria with a brisk
breakfast business. She opens the cafeteria each morning. After
several years on the job, Grace is diagnosed with major depression
and starts to take medication. The medication causes Grace to feel
groggy in the morning. As a result, she is often late. She asks
the restaurant for a later start time. One of Grace's essential
functions is to open the restaurant, and it is an undue hardship
for the employer if Grace opens late. (But note: just because one
possible reasonable accommodation will not work does not mean that
you have no obligation to see if there is another accommodation
that will work. For example, could Grace be reassigned to another
shift or another job?)
It is very important that
you and your employee work together to figure out whether there is
an accommodation that would allow the employee to do the job.
May I automatically reject a request to use a service animal as a
you may not automatically reject this request from a person with a
disability. The FDA Food Code has special rules for service animals.
Special rule for service animals:
FDA Food Code Section 2-403.11 prohibits handling of animals, but
allows employees to use service animals. Section 6- 501.115 states
that service animals may be permitted in areas not used for food
preparation. Employees may handle their service animals if, after
handling a service animal, the employee washes his hands for at
least 20 seconds using soap, water, and vigorous friction on
surfaces of the hands, followed by rinsing and drying as per
You also have to figure out
if the service animal would be an "undue hardship" on your business,
or whether the service animal would pose a direct threat to the
health or safety of your other employees or the public. See
questions 4 and 5 for more on undue hardship and direct threat. An
employee with a disability is permitted to handle his service animal
at work unless the employer demonstrates that it would cause an
undue hardship or pose a direct threat.
Adelio, who is blind and uses a service animal, applies to work as
a cashier at a company's snack bar. Adelio explains that the dog
can sit near the cash register area while Adelio works. The
company may not automatically reject Adelio because he uses a
service animal. The company must allow Adelio to keep his dog near
the cash register area unless it can prove that doing so would
impose a significant difficulty or expense or a significant risk
of substantial harm.
(A food service business's
obligation to accommodate
a customer who uses a service animal is enforced by
the Department of Justice.
For information on this issue, go to
www.usdoj.gov/crt/ada/animal.htm or call (202) 307-0663 (voice
My restaurant has several locations in the city. One of my employees
with a disability can no longer do his job at one location, even
with a reasonable accommodation. There are no other openings at that
location, but there are several at another restaurant that would be
appropriate. Do I have to consider placing the employee at the other
Reassigning an employee with a disability to a vacant position is a
reasonable accom- modation and must be considered if you cannot
accommodate an employee in his current job. You must consider
reassignment before concluding that you cannot provide any
accommodation at all.(11)
If you operate restaurants in different locations and there are no
vacancies in the facility where the employee works, you need to
consider vacancies in other locations.
Remy works as a cashier and as a host escorting diners to their
seats at one of his employer's three area restaurants. Because of
a disabling degenerative disease, Remy can no longer perform the
function of escorting diners to their seats. He now needs to sit
while at work. There are no vacancies at the restaurant where Remy
currently works, but there is a vacant cashier position (for which
he could sit) at one of the other restaurants. Remy is qualified
as a cashier. The ADA requires that he be offered the position.
(But remember, if a seniority system is involved, you should refer
to the special rules on seniority systems, described in EEOC's
Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with
Disabilities Act. See fn. 11).
You do not have to create a
new position for the employee, and you may require that the employee
have the required experience or training for the reassignment.(12)
Are there other types of reasonable accommodations that I should
There are many
accommodations that enable people with disabilities to apply for
jobs, be productive workers, and enjoy equal employment
opportunities. These include:
Equipment specially made for use by a person with a disability
(for example, keyboards designed for one-handed use) or regular
equipment that a person with a disability can use to make doing a
job easier (for example, a hand cart)
Making written materials accessible (for example, use of braille)
Making changes to the physical structure of the workplace
(installing a ramp for employee use)
Job-restructuring, by moving minor tasks to other employees or
altering when and/or how a task is performed
Allowing an employee (for example, a bookkeeper) to work at home
Modifying a work schedule (for example, changing a start/end time)
Modifying a workplace rule (for example, a rule barring transfers
Modifying supervisory methods (for example, by giving an employee
detailed job assignments)
Allowing an employee to take leave
This list is not meant to
include every possible accommodation that an employer might provide
to a person with a disability.
There is a separate federal
law about taking time off for serious medical conditions. That law,
the "Family and Medical
Leave Act," applies to employers with 50 or more
employees. These employers must give "eligible" employees up to 12
weeks of leave every 12 months for an employee's own serious medical
condition or the serious medical condition of a close family member.
This law also covers child birth and adoption. The U.S. Department
of Labor enforces this law, not the EEOC. For more information, see
the Department of Labor's website at
Performance and Conduct of Employees
If an employee's job performance gets worse over time, may I get
medical information from the employee or require a medical exam?
As a general rule, you
should not routinely ask for medical information when an employee's
job performance gets worse over time. Instead, you should directly
address the performance issue.
But, sometimes the
give you a reason to believe that a medical condition is causing
danger at work or hurting the employee's performance. When poor job
performance or danger appear to be linked to a medical cause, you
may ask for medical information or require a medical examination.(13)
Gabriella works as a grill cook. She told a co-worker that on
three separate occasions she felt dizzy and that one time she
almost fainted. The employer would be allowed under the ADA to ask
Gabriella medically-related questions about this condition because
it is possible that Gabriella might faint while standing over a
hot grill, which presents a significant risk of substantial harm
to Gabriella and her co- workers.
What if I learn for the first time during a performance review that
an employee believes his disability is the cause of his poor
performance or misconduct? Do I have to excuse the poor performance?
As long as you treat this employee as you would any other employee
who performed poorly or violated conduct rules, you will not violate
the ADA, even if he has a disability.
Abby works as a janitor for a restaurant, cleaning floors and
bathrooms. She did not disclose a disability when you hired her.
At her performance review, during which you discuss performance
problems, she says she has a learning disability and does not
always understand instructions. Abby asks that instructions be
given to her both orally and in writing so that she can take time
to review them carefully. You may address her poor performance
through your regular performance review process. However, you must
consider providing a reasonable accommodation to enable Abby to
meet the performance standards in the future. Before providing an
accommodation, you may request that Abby provide medical
documentation establishing that she has a disability and needs a
What if an employee engages in conduct that normally would result in
termination? Do I have to excuse the conduct if the employee claims
it was caused by a disability?
As long as you treat this employee the same as you would any other
who engaged in similar misconduct, you may terminate this employee.
Nestor, a bartender, has been stealing liquor. Each time he pours
a scotch for a customer, he puts a bit in a glass for himself.
After noticing that scotch sales do not match purchases, the
manager watches Nestor and notices him siphoning off the liquor.
He suspends Nestor and later informs him that his employment is
terminated for violating a workplace rule against theft. Nestor
says that he is disabled by alcoholism. The manager may still
terminate Nestor for stealing the liquor.
Similarly, an employee who
illegally uses drugs is not protected under the ADA and may be
Alice returns from a break smelling of marijuana smoke. You send
her for a drug test, which comes back positive. Alice tells you
that before you hired her she was diagnosed as a drug addict and
completed a drug rehabilitation program. Even though Alice's
record of drug addiction means that she might have been protected
by the ADA as a person with a record of a disability, her current
illegal use of drugs means that you may terminate her without
violating the ADA.
One of the dishwashers at my restaurant has autism. Autism affects
the way he talks and walks, and some of the other kitchen employees
make fun of his mannerisms. He is clearly upset by the teasing. The
kitchen is a lively place and all of the employees tease and joke
with each other. Do I need to address the situation?
Even if your business has an informal atmosphere that includes
teasing and banter among the employees, you need to ensure that such
conduct does not go too far. It would be illegal harassment if it
were based on disability, unwelcome, and serious and/or occurred
As an employer, you are
responsible for preventing and eliminating harassment. You should
take steps to correct such behavior as soon as possible. If an
employee files an ADA charge against your business claiming that he
was subjected to harassment on the basis of disability, an
investigation would look at the comments and conduct at issue, but
also at the steps you took to eliminate and/or prevent the behavior.
Complaints or Charges Against Employers
Someone filed a "charge" against my business. Now what happens?
A complaint or a "charge"
of discrimination means only that someone thinks that an employer
discriminated against her for reasons that are not legal under
Federal equal employment opportunity law: disability, or race,
color, national origin, religion, sex, or age. A charge does not
mean that you in fact did anything wrong. (On the EEOC web site,
www.eeoc.gov, there is a link that explains "How to File a
The EEOC will send you a
copy of the charge and request a response and supporting infor-
mation. Prior to a formal EEOC investigation, you may be given the
opportunity to mediate the issues raised in the charge. Mediation is
a less expensive and less time-consuming way of resolving an
employment dispute; in fact, the EEOC mediation program is FREE,
voluntary, and confidential.
Depending on how the
mediation goes, the EEOC may then investigate the charge. If the
EEOC finds "reasonable cause" to believe that you discriminated
against the charging party, it will invite you to conciliate the
charge (this is a chance to deal with the charge informally). In
some cases, where conciliation fails, the EEOC will file a civil
court action. If the EEOC finds no discrimination, or if
conciliation fails and the EEOC chooses not to file suit, it will
issue a "notice of a right to sue," which gives the person 90 days
to file a private court action.
For a detailed description
of the process, check out the EEOC website and click on the link to
"Small Businesses," and then the link to "When A Charge Is Filed
Against My Company."
An employee filed a charge against my business, claiming that he had
been discriminated against on the basis of his disability. The EEOC
found that there was no reasonable cause to support the claim. I am
very angry that this employee accused me of such behavior and I am
considering terminating him. Is this permitted?
If you terminate an employee because he filed a charge of employment
discrimination against you, you are retaliating against that
employee. Retaliation on the basis of filing a charge is prohibited
by the ADA.
Once you receive a charge,
you need to be careful not to retaliate against the person who filed
it, especially if the person still works for you. Sometimes, an
employer is angry that she and her business have been charged with
discrimination. But be careful: it is not unusual for the EEOC or a
court to rule that there was no discrimination but that there was
Soledad and Taja worked as hosts for a large restaurant. After the
head host retired, Soledad and Taja applied for the now-vacant
position. The owner chose Soledad. Taja, believing that the owner
did not select her because she has a disability, filed a charge
with the EEOC. Taja's hours were reduced substantially soon after
the employer received notice of the charge. An EEOC investigator
learns that Soledad is the owner's niece and the owner states that
he chose her because of this family connection. The owner also
said that he reduced Taja's hours for financial reasons, but the
investigator learns that the restaurant hired a new host to fill
the hours taken away from Taja. Based on these facts, the EEOC may
find that there is no reasonable cause to support the disability
discrimination claim but that the restaurant retaliated against
Taja for filing the charge.
You may not retaliate
against a person who files a charge of discrimination. You also may
not retaliate against someone who "participates" in the EEOC process
by, for example, requesting a reasonable accommodation or serving as
a witness in support of a co-worker's charge of discrimination.
Additionally, you also may not retaliate against someone who opposes
conduct that she believes is discriminatory by, for example, signing
a petition protesting a perceived discriminatory practice at your
Uri, called as a witness at the trial of Vasanti's disability
discrimination complaint, testifies truthfully that the restaurant
manager made nasty comments about Vasanti's dwarfism. One month
later, Uri is fired for eating a donut before paying for it. Uri
files a retaliation charge and the EEOC investigator learns that
although there is a rule against eating food before paying for it,
Uri is the first employee ever punished for violating it. The EEOC
may find reasonable cause to believe Uri's retaliation complaint.
FEDERAL TAX INCENTIVES TO ENCOURAGE THE
EMPLOYMENT OF PEOPLE WITH DISABILITIES
AND TO PROMOTE THE ACCESSIBILITY
OF PUBLIC ACCOMMODATIONS
The Internal Revenue Code
includes several provisions aimed at making businesses more
accessible to people with disabilities. The following is designed to
give you general information about three of the most significant tax
incentives. It is not legal advice. You should check with your
accountant or tax advisor to find out whether you are eligible to
take advantage of these incentives or visit the Internal Revenue
www.irs.gov, for more information. Additionally, consult your
accountant or tax advisor about whether there are similar state and
local tax incentives.
Business Tax Credit (Internal Revenue Code Section 44: Disabled
Small business with either
$1,000,000 or less in revenue or
30 or fewer full-time employees may take a tax
credit of up to $5,000 annually for the cost of providing reasonable
accommodations such as sign language interpreters, readers,
materials in alternative format (such as Braille or large print),
the purchase of adaptive equipment, the modification of existing
equipment, or the removal of architectural barriers.
Work Opportunity Tax Credit
(Internal Revenue Code Section 51) (pending
reauthorization as of October 2004): Employers who hire certain
targeted low-income groups, including people referred from
vocational rehabilitation agencies and individuals receiving
Supplemental Security Income (SSI), may be eligible for an annual
tax credit up to $2,400 for each qualifying employee who works at
least 400 hours during the tax year. An annual tax credit of up to
$1,500 may be available for each qualifying employee who works at
least 120 hours but less than 400 hours during the tax year.
Additionally, a maximum credit of $1,200 may be available for each
qualifying summer youth employee.
Deduction (Internal Revenue Code Section 190: Barrier Removal):
This annual deduction of up to $15,000 is available to businesses of
any size for the costs of removing barriers for people with
disabilities, including the following: providing accessible parking
spaces, ramps, and curb cuts; providing wheelchair-accessible
telephones, water fountains, and restrooms; making walkways at least
48 inches wide; and making entrances accessible.
INFORMATION ABOUT REASONABLE ACCOMMODATIONS
Below are a few of the most
frequently consulted resources for accommodating qualified people
with disabilities. Many other resources exist both nationally and
locally, such as organizations of and for individuals with
particular types of disabilities. Finding one of these organizations
in your area may be as simple as consulting your local phone book.
Accommodation Network (JAN)-
provides lists of accommodations
based on specific disabilities as well as links to various other
accommodation providers P.O. Box 6080
Morgantown, WV 26506-6080 (800) 526-7234 or (304) 293-7186