The ADA does not override health and safety requirements established under other federal laws even if a standard adversely affects the employment of an individual with a disability. If a standard is required by another federal law, an employer must comply with it and does not have to show that the standard is job related and consistent with business necessity.
For example, employers must conform to health and safety requirements of the U.S. Occupational Safety and Health Administration. However, an employer still has the obligation under the ADA to consider whether there are reasonable accommodations, consistent with the standards of other federal laws, that will prevent exclusion of qualified individuals with disabilities without violating the standards of those laws. If an employer can comply with both the ADA and another federal law, then the employer must do so.
The ADA does not override state or local laws designed to protect public health and safety, except where such laws conflict with ADA requirements. If there is a state or local law that would exclude an individual with a disability from a particular job or profession because of a health or safety risk, the employer still must assess whether a particular individual would pose a “direct threat” to health or safety under the ADA standard. If such a “direct threat” exists, the employer must consider whether it could be eliminated or reduced below the level of a “direct threat” by reasonable accommodation. An employer cannot rely on a state or local law that conflicts with ADA requirements as a defense to a charge of discrimination.
Pre-Employment Screenings
Some OSHA required tests could result in the discovery of a previously undisclosed disability, or to a claim of discrimination from people who feel they were excluded from employment opportunities based on a disability. The ADA places restrictions on the types and timing of testing allowed, which should be considered when engaging in required OSHA testing. Under the ADA:
- Pre-employment medical testing is prohibited.
- Post-offer testing is permissible if the test is consistent with business necessity and given to all employees in the same job category.
- Periodic testing of employees is also permissible, when necessary, to ensure the safety and well-being of employees or the general public.
Working Environment, OSHA Requirements and Disability
Since 1970, efforts by OSHA to enforce standards of workplace safety have greatly reduced the incidence of workplace injury and mortality rates. When known occupational hazards exist, OSHA may require routine health screening or assessments to monitor the ongoing impact of such environments on employees. For example, an employee exposed to bloodborne pathogens might receive testing to determine whether transmission of an infectious disease has occurred. Similarly, workers in danger of occupational hearing loss are given routine exams to monitor their auditory health over time.
Establishing a baseline for audiometric tests could reveal existing non-occupational hearing losses, as well as newly developed ones. In each of these examples, the employer could discover conditions that afford employees:
- Rights under the Occupational Safety and Health (OSH) Act;
- Protection under the ADA; and
- Entitlements under state specific workers’ compensation laws.
Issues of Confidentiality
In general, the confidentiality requirements of the ADA are not compromised by employer compliance with OSHA regulations. The ADA contains a provision whereby employers are permitted to release confidential information in the process of complying with other federal laws or regulations, as long as the release is relevant to employment. In its enforcement activities, OSHA adheres to a strict standard of confidentiality, which generally meets the standards required by the ADA.
Physical and Environmental Safety
The physical environment of the workplace can pose access challenges and safety hazards to people with and without disabilities. These environments should be considered based on their potential to pose barriers for people with disabilities, and their potential to create hazards which might cause illness or injury.
Physical Access Barriers
Certain access barriers, such as inaccessible multi-level buildings and narrow doorways, are obvious. Other types of access barriers are less obvious and can be hazardous for employees with and without disabilities. Dimly lit stairwells, narrow walking pathways and poorly maintained parking lots can all present mobility barriers or trip and fall hazards. Industrial environments, construction sites, and other trade worksites are common places where workplace injuries can occur. Evaluating these environments with an eye toward physical accessibility will create safer workplaces for all employees.
Certified Occupational Therapists are experts at evaluating workplaces for safety, accessibility, and reduction of repetitive use injuries. Learn more from the American Occupational Therapy Association.
Environmental Sensitivities
Employees who experience sensitivity to certain odors, particulates, cleaning products, foods, or other irritants present in the workplace can experience symptoms ranging from mild nausea to sudden death. These types of allergies and sensitivities can be considered disabilities under the ADA but are sometimes challenging to accommodate. The Job Accommodation Network (JAN) provides assistance and recommendations for accommodating multiple chemical sensitivities in the workplace.
Workplace Emergency Plans
Comprehensive emergency and evacuation plans should include strategies for including individuals with disabilities in the event of a crisis or disaster, which often includes a way to evacuate buildings if the elevators are not available. OSHA and the Federal Emergency Management Administration (FEMA) provide general guidelines for developing emergency plans, and the Department of Labor’s Office of Disability Employment Policy (ODEP) offers specific information for employers on addressing the needs of employees with disabilities in an emergency.
Direct Threat
Qualified individuals with disabilities who are capable of performing the essential functions of a position, with or without an accommodation, can rarely be considered a direct threat to their own or others’ safety at work. While the ADA does allow businesses to consider whether an employee represents a safety risk to themselves or others, the determination must be made based on facts and medical evidence, rather than myths or misconceptions about people with disabilities. However, the ADA does permit employers to establish physical qualifications for a position in order to eliminate a potential safety threat; for example, good (or satisfactorily corrected) eyesight prior to motor vehicle operation. Medical examinations given to establish physical qualifications must be administered post-offer and must be given to all employees in the same job category, unless conducted in response to an accommodation request, to establish ongoing qualification for a specific position or; when a safety concern is job-related and consistent with business necessity.
Occupational Injury and the ADA
Injuries and illness that arise from occupations may rise to the level of an ADA covered disability.
Employer obligation under the ADA
When an employee develops a work-related injury or disability, the employer may have multiple obligations under the law. In order to comply with safety regulations, an employer might need to remove the employee from their position or reassign them to a different task. The ADA, however, requires that employers consider whether the employee is still qualified for the position with or without an accommodation. Therefore, an employer might be obligated to accommodate the employee in their current position before considering reassignment or termination.
The ADA Amendments Act of 2008 expanded the definition of disability, increasing the likelihood that common workplace injuries such as those acquired by lifting or repetitive motion will meet the legal definition of disability under Title I.
Workers’ Compensation and the ADA
When an employee is injured on the job, the employer may have specific requirements related to the ADA, the OSHA and state-specific workers’ compensation laws. As each state has its own laws related to workers’ compensation for occupational illness and injury, employers should contact their state department of labor for guidance.
Spencer-SHE has been providing Safety, Health, and Environmental Compliance Guidance since 1980. We are an all-in-one solution for any worker safety or health compliance need.
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Sources:
https://adata.org/faq/does-ada-override-federal-and-state-health-and-safety-laws
https://askearn.org/page/ada-and-workplace-safety
https://smallbusiness.chron.com/osha-wheel-chair-requirements-offices-13898.html
https://cerebralpalsynewstoday.com/2017/04/11/how-society-views-disability/