The Americans with Disabilities Act (ADA) prevents workplace discrimination and helps enable proper access to business facilities for disabled patrons. Workplace ADA compliance falls primarily under Title I of the ADA, workplace, and employment―ensuring your hiring, employment, and disciplinary practices are fair. ADA enforcement begins once your business reaches 15 employees or more.
How ADA Compliance Is Defined in the Workplace
The ADA workplace law ensures that disabled employees are treated fairly in the workplace. That means employees and job seekers can’t be discriminated against based on a real or perceived disability. As an employer, it’s your responsibility to develop fair hiring practices and provide reasonable accommodations for disabled employees who are otherwise capable of fulfilling the core responsibilities of a job.
Here’s what the United States government states in its Small Business Primer:
“The ADA is a federal civil rights law that prohibits discrimination against people with disabilities and opens doors for full participation in all aspects of everyday life.”
ADA Workplace Standards
Prohibiting discrimination under the ADA kicks in for employers once they reach 15 or more employees. Employment agencies must also comply with the ADA. The standard requires that you don’t discriminate when doing any work-related activities―from posting job ads to managing workplace assignments. For firms with fewer than 15 workers, ADA compliance is a best practice, but it’s not enforced by the Equal Employment Opportunity Commission (EEOC).
Examples of common work-related activities subject to ADA compliance include:
- Recruiting: Your job application must be accessible to job seekers, including the disabled―on-site or online. It’s also best to convey that you’re an equal opportunity employer.
- Hiring: You can’t discriminate against a candidate during the hiring process. However, once an offer is made, you may conduct pre-employment testing to verify they can do the job.
- Firing: While the at-will doctrine applies in most states, you can’t fire a person simply because they have a disability or have recently become pregnant or disabled.
- Advancement: Not promoting an employee because they have a disability is against the law as long as the worker can do the job with a reasonable accommodation.
- Compensation*: You can’t pay disabled workers less for the same or equivalent job.
- Job training: You can’t leave disabled employees out when you conduct job training.
- Other: You can’t discriminate regarding employment terms, conditions, or privileges, such as whether they get to attend a conference or to which shift they’re assigned.
*The FLSA does provide what’s called a subminimum wage (lower pay rate) when hiring physically or mentally impaired workers unable to do the job at required performance levels. This gives seriously disabled workers a chance to participate in the workforce.
Definition of a Disability as Defined by the ADA
Under the ADA, a disability is defined as a physical or mental impairment. However, it’s more than that. It could also be a disfigurement, a former disability―such as a back injury―or a perceived disability. Examples may include a service member with post-traumatic stress disorder (PTSD) returning to work, individuals who have HIV/AIDs, or a worker with unattractive facial scars.
How ADA Workplace Compliance Applies to Your Business
The ADA applies in several areas of business and industry. Employers are most impacted by Title I of the ADA, which ensures fair employment. However, you may also be subject to Title III, which covers public spaces and commercial business like a restaurant or nonprofit that serves the public. Title II of the ADA covers state and local governments, which are outside the scope of this article.
Here are the kinds of small businesses that need to be aware of and comply with the ADA:
- Any business that serves the public: Public-facing stores must ensure their customers can access their services and includes disabled job seekers applying for work.
- Business with more than 15 employees: Once your business hires its 15th active employee, it must abide by the ADA ensuring disabled workers have the same workplace opportunities as others.
- A business that leases office or commercial space: A business owner may need to talk to their landlord to ensure building entrances and doorways are ADA-compliant.
- Building owners: If you own an office building, retail store, restaurant, or another commercial facility, you must ensure your building and services are accessible to the disabled, including prospective customers as well as employees.
- Nonprofit agencies: Nonprofit agencies serving the public must also comply with the ADA as both employers and as a public service entity.
It’s a best practice for any business not to discriminate against others. Although you’re not likely to be subject to ADA fines if you’re a very small employer running a noncustomer-facing business, creating a policy of inclusion benefits your employees and customers alike. If your firm plans to grow, you may wish to implement inclusive policies with your management team and staff from day one.
Many business owners desire to comply with federal labor laws like the ADA, but don’t always know what the exact rules are. If you’re looking for a firm to audit your current HR practices and provide you with unlimited monthly online consulting for as low as $99 per month, check out Bambee. Bambee was built to take the stress out of small business HR compliance.
ADA Compliance Is an Investment
While there are a few costs you’ll incur as a business that serves the public or that has more than 15 employees, ADA compliance is more of an investment than an expense. That’s because an ADA fine can cost your business thousands of dollars, whereas ADA compliance costs relatively little.
Here are the costs that go into ADA Workplace Compliance:
- $100 to $300-antidiscrimination policy: This may include the cost to create a one-page antidiscrimination policy and have it reviewed by an attorney.
- $100 to $500-training: As a best practice you’ll want to train your managers―and employees if they work with the public―on the ADA. A one-hour training session should suffice, whether you conduct it yourself, or hire an HR trainer to facilitate it for you.
- $100 to $1,000-reasonable accommodation: A reasonable accommodation might cost little, like a custom chair or keyboard. Alternatively, it may cost more, such as a wheelchair ramp to your business front door or signage in braille.
Once you reach the critical threshold of 15 or more employees, you’ll find your business is much more likely to have a discriminated-against person file a complaint. That’s why it’s best to invest upfront in a written policy and training for your workforce as well as to consider reasonable accommodation requests from your job seekers and employees.
A payroll expert from Paychex shared this costly noncompliance example with us:
“A hotel in New York agreed to pay $85,000 and provide paid leave worth approximately $15,000 to settle an EEOC lawsuit on a claim brought by one employee who did not receive a reasonable ADA accommodation. The employee had a back impairment and asked to be able to sit in a chair at the front desk. According to the EEOC, being seated did not interfere with the employee’s performance of his assigned job duties of registering guests, processing payments, and responding to guest inquiries.”
―Mike Trabold, Compliance Director, Paychex
ADA Workplace Compliance Providers
Some businesses find labor law compliance taxing. That’s likely due to the fact that the ADA is only one of the dozens of federal and state laws affecting your business. For example, states like California have numerous labor laws well beyond what the federal government requires. One example is the California Department of Fair Employment and Housing Act (DEFA) that makes it unlawful for an employer (with as few as five employees) to discriminate against a pregnant woman.
Below are four kinds of providers that can assist you with ADA compliance.
1. HR Experts
Once your firm reaches 15 employees, many labor laws come into play. That’s a good time to consider hiring a certified HR associate, working with an HR consultant, or signing up for an HR service like HR.com. Some businesses retain a labor law attorney as an option. While hiring a full-time HR representative may cost you $50,000 per year or more, becoming an HR expert yourself can be time-consuming as labor laws change often.
2. Outsourced Consulting Firms
Hiring a consulting firm for HR outsourcing is another way to help build your ADA-compliant policies and practices. These firms may be able to offer manager training as well. HR outsourcing is best for employers who don’t have the funds to hire an HR manager and don’t want to worry about all the various and sundry HR labor laws.
A good middle option is to get the services of an HR consulting firm on a monthly subscription with a service like Bambee. Bambee provides small business with the HR compliance consulting they need for as low as $99 per month. Any time you have a question about ADA workplace issues or any HR/employee issue, they’re a phone call away.
3. Human Resources Software
HR software can often provide advanced reporting options to help you keep track of your diversity applicants and hires. For instance, they store job descriptions and signed forms. That can serve you well if you’re ever accused on discrimination. HR software reports can also help you ensure your pay rates are fair across all employees. Most can provide you with an employee handbook and policy templates too.
Zenefits is HR software that does more than just HR. They provide you with an employee database and an online portal. However, they also can manage your employee payroll, benefits, timekeeping, and compliance needs with policy templates and HR consulting services. You can demo Zenefits software in multiple ways, including by trying it out yourself for free.
4. Professional Employer Organization
By working with a professional employer organization (PEO), you’ll have a business-savvy HR advocate as your co-employer to help you manage compliance in all aspects of your business―from job applications to nondiscriminatory termination processes. A PEO can provide you with policy templates to use as well as advice on how to ensure ADA compliance once you reach 15 employees.
Justworks is an example of an affordable PEO that provides HR compliance services as well as an HR database, document storage, e-signature for key documents, and more. They can set up employee benefits for your staff and manage your team member payroll. Best of all, their HR experts can answer your labor law compliance questions.
ADA Compliance Requirements
To keep things simple, the ADA uses the term “reasonable accommodation” when it comes to providing a workplace or business that’s ADA-compliant. What that means is that to the extent your business can afford to accommodate disabled clients and employees, it should do so. Larger enterprises would be expected to provide more expensive support for the disabled than a smaller firm. We’ll provide examples below to help clarify what reasonable accommodation might look like for your small business.
The most important thing to know about reasonable accommodation is that it’s subjective. Often, you can ask a disabled person―once they’ve disclosed a disability to you―a simple question like, “what kind of reasonable accommodation would you need to do this job?”
Here are examples of reasonable accommodations for various kinds of disabilities:
- Providing a ramp for a wheelchair-bound employee to enter your office building
- Giving a call center agent with limited motor skills a special keyboard for data input
- Providing a lower desk and chair for a person having dwarfism to access their PC
- Allowing an employee with a contagious skin infection to work from home
- Giving a mentally ill worker time off to get their medication adjusted or see a therapist
- Adjusting the schedule of a pregnant mom around her prenatal doctor appointments
- Providing a headset to a hearing-impaired dispatcher
- Allowing a sales clerk to use a wheelchair in your retail store
- Providing a bell so that your blind receptionist knows when someone enters the office
- Installing a voice to text reader for your vision impaired computer operator
Here are examples that may not be reasonable for a small business owner:
- Hiring a full-time paid staff member to assist a blind programmer in editing code
- Installing an elevator in your two-story design studio for a wheelchair-bound worker
- Buying a parking lot to prevent your employee with a heart condition from walking as far
- Training all employees so that one hearing impaired employee can participate using sign language in team meetings
- Building a separate entrance so that an employee with PTSD doesn’t get started
Examples of ADA Compliance in the Workplace
Some employers worry that they may not be doing enough to make their workplace friendly to disabled persons while other employers don’t consider how easy an accommodation might be. Of course, each business is different, and your specific options may need you to be a bit creative.
Here are some things to think about:
- Building accessibility: A job seeker in a wheelchair wants to apply to your open bookkeeper role. However, your business has a curb. Could you install a ramp?
- Post-surgery: Your waiter had foot surgery affecting his ability to walk during his shift. Could you reassign him to the host desk to greet guests until he’s back on his feet?
- Workers’ compensation injury: An electrician in your shop was injured on the job. Under both the ADA and workers’ compensation, could you find him a modified role until he’s fully recovered, such as assisting clients with parts orders and instructions?
- Pregnancy: You just hired a receptionist who later informed you that she’s expecting a child. You can’t fire her for that reason, change her role, or terminate her. She’s fully protected under ADA and may be protected under state pregnancy laws as well. Do you have a maternity leave policy that clarifies when and how Family and Medical Leave Act of 1993 (FMLA) applies in her case?
- Mental health: A job applicant discloses they have PTSD. When you ask if they can do the essential functions of the job. They say yes. You later learn they fear and don’t want to be near animals. How do you manage your existing pets at work policy?
“Appropriate and effective reasonable accommodations are dependent on the work and the disability but are often low cost. For example, an individual with a covered disability that causes neck, back, shoulder, and upper extremity impairment may benefit from the use of a headset because they often eliminate the need to hold telephone receivers in awkward positions.
“Employers should work with the employee to help determine an appropriate accommodation. Often, inexpensive accommodations can benefit a small employer by helping to retain valuable employees and reduce workers’ compensation and training costs.”
The ADA website provides a helpful 17-minute video on 10 ADA employment myths that you may wish to share with your management team as part of an ADA training program. Training ensures that your staff is in sync with you in terms of how you assist disabled clients and the ways in which you desire to make your workplace inclusive for all.
Pros & Cons of ADA Workplace Compliance
ADA is a law, but not all employers must comply. If you’re a business with 15 or more workers, you have to abide by the ADA, but smaller employers should consider ADA compliance as well.
Pros of ADA Compliance
The benefits of ADA compliance include:
- Increased diversity: Workplace diversity improves creativity and culture.
- Improved employment brand: Employees feel included, regardless of differences.
- Cost savings: You’re significantly less likely to be audited, sued, or fined.
- Feels good: You not only obey the law but give jobs to otherwise marginalized workers.
- Larger talent pool: In a tight labor market, you have more applicants from which to choose.
Cons of ADA Compliance
The downside of ADA compliance may be:
- Health Insurance Portability and Accountability Act (HIPAA): You’ll need to protect worker’s private health and medical information.
- Reporting: Larger employers may need to document their diversity and inclusion efforts.
- Documentation: To be fully compliant, you’ll want to update your employee handbook and ensure all your job descriptions include a listing of the essential functions of the job.
- Training: It’s often necessary to educate managers and staff to comply with ADA.
Alternatives to ADA Compliance
Some businesses find labor law compliance, such as ADA workplace rules, messy. If a business is on the fence, they might consider postponing their next hire or using freelancers, temporary employees, or virtual assistants (VAs) instead. Hiring these individuals won’t subject the employer to ADA enforcement. It’s the worker’s full-time employer that must comply with labor laws.
Employ 1099 Freelance Contract Workers
Independent contractors, freelancers, and gig workers typically hire out by project or negotiate a rate that you pay for their services. They also pay their own taxes, so that you don’t have to manage payroll for them. They’re not considered an employee. However, the government has explicit rules clarifying the difference between an employee and an independent contractor; misclassification can land you in hot water with the IRS.
Use the Services of a Virtual Assistant Company
A VA company hires workers that they assign to manage work for your business. VA staff most likely work off-site managing tasks that can be done online―from data entry to social media marketing, accounting, website management, and more. As they’re not your employees, they don’t count toward your company size. Here are some of the best virtual assistant companies for small business.
Source Workers Through a Temporary Agency or Staffing Firm
Staffing firms, similar to a VA, hire employees that they lease to you for a fee that’s about 35% above the employee’s regular pay rate. For example, let’s say you need an information technology (IT) manager. You can find one through an IT staffing firm. However, instead of paying the person as an employee, you pay an invoice to the staffing firm, and they pay the employee’s salary and benefits.
Frequently Asked Questions (FAQs) About ADA Workplace Compliance
ADA compliance is a relatively new law, having been implemented in the 1990s, well after many business owners graduated college. It’s part of our government’s focus on equal opportunity for all, but you may have questions about complying with it. If your question isn’t answered below, consider posting it on our forum, and we’ll do our best to get back with you in a day or so.
What if I’m in a building that’s not ADA-compliant?
Title III under the ADA covers public and commercial facilities. If you own the building, you may need to make sure it’s accessible to your customers and employees with disabilities. If you lease the building, it’s best to talk with your landlord and share what’s required for building owners. You can find information online under Title III of the ADA.
Is mental health covered by the ADA?
Yes, it is. You may have a worker who suffers from major depression, anxiety, bipolar disorder, or any number of mental health issues. However, if they can do the job―with or without reasonable accommodation―you can’t discriminate against them, even if you didn’t know about their issues before you made the job offer or hired them.
Is it OK to require a pre-employment physical?
Some jobs require employees to be able to do physical work, such as raise their arm above their head to turn off an alarm, or to be able to read in English from a computer screen. To ensure your employee can do the essential functions of the job―as listed on your job description―you may ask them to complete a pre-employment physical after they have been offered the job.
Note: You can’t ask them to submit to a physical before they get a job offer as that would most likely be seen as discrimination.
What if I can’t afford to comply with the ADA?
The EEOC, as the compliance arm of the ADA, understands that larger businesses can often implement features such as elevators or equipment to assist disabled clients or workers. For that reason, the ADA doesn’t kick in for employers until they have at least 15 employees. A small mom-and-pop eatery with two workers isn’t likely to be able to afford the implementation of a braille menu.
Note: Whether or not you comply with the ADA, if challenged, the discrimination claim will be put to the reasonable accommodation test.
Is pregnancy considered a disability?
Being pregnant itself isn’t a disability. However, pregnancy and childbirth is a time when women may be unable to complete their regular job duties due to health issues. In addition, caring for a sick newborn, breastfeeding, and morning sickness are common examples of needs that may require reasonable accommodation.
For example, a pregnant woman who needs more frequent bathroom breaks is covered under the ADA. Most would find that to be a reasonable accommodation.
Is ADA compliance mandatory for my business website?
Due to tools available on the internet, such as text to speech, modified headset, and keyboards with keys in braille, your small business is not likely required to invest in expensive website apps to make it more accessible. However, larger enterprise firms that have the means to do so are wise to invest in website accessibility tools like alt-text for images or transcripts of audio/visual files.
Who enforces the ADA?
The ADA is enforced by two agencies, the U.S. Department of Justice (DOJ) and the EEOC. However, the DOJ focuses primarily on federal, state, and local ADA compliance. The EEOC, in contrast, focuses on employer-related ADA issues.
How can I learn more about the ADA?
The ADA website provides email updates to subscribers. In addition, the ADA posts the phone number of an ADA specialist right on their homepage to allow business owners to ask questions about ADA compliance.
Trabold offers these resources as well:
“The Job Accommodation Network (JAN) also offers employers free expert guidance on workplace accommodations and disability employment issues. They provide suggested accommodations based on disability, limitations, and work-related function. JAN is funded by a contract from the U.S. Department of Labor (DOL) and the Office of Disability Employment Policy (ODEP).”
How can I find disabled workers to supplement my existing workforce?
There are many online job boards that cater to workers with disabilities and employers who are actively seeking to create a more inclusive work culture by hiring disabled persons. For example, EARN provides a list of a dozen such websites.
Complying with federal labor laws, like the ADA is just good business. It reduces the chances you’ll be a party to a discrimination lawsuit and makes your employees and customers feel welcome in your business. Even businesses with fewer than 15 employees are wise to consider searching for candidates who can do the job, regardless of their disability status.
Bambee is an HR consulting organization that offers labor law compliance and one-on-one telephone consulting for your business. Unlimited HR consulting starts at $99 per month. Bambee can help you create an inclusive work environment, document policies, and achieve your goals of a fully compliant workplace.