Intellectual Disability and the Law in terms of Work in USA

To read on the U.S. Equal Employment Opportumity Commission website:

Questions & Answers about Persons with Intellectual Disabilities in the Workplace and the Americans with Disabilities Act (ADA)

INTRODUCTION

The Americans with Disabilities Act (ADA), which was amended by the ADA Amendments Act of 2008 (« Amendments Act » or « ADAAA »), is a federal law that prohibits discrimination against qualified individuals with disabilities. Individuals with disabilities include those who have impairments that substantially limit a major life activity, have a record (or history) of a substantially limiting impairment, or are regarded as having a disability.1 (…)

The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA. This document, which is one of a series of question-and-answer documents addressing particular disabilities in the workplace,3 explains how the ADA applies to job applicants and employees with intellectual disabilities. In particular, this document explains:

  • when an employer may ask an applicant, employee, or third party (such as the family member of an applicant or employee) questions about an intellectual disability;
  • what types of reasonable accommodations applicants and employees with intellectual disabilities may need;
  • how an employer should handle safety concerns about applicants and employees with intellectual disabilities; and
  • how an employer can ensure that no employee is harassed because of an intellectual disability or any other disability.

GENERAL INFORMATION ABOUT INTELLECTUAL DISABILITIES

An intellectual disability (formerly termed mental retardation) is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior that affect many everyday social and practical skills.4 An individual is generally diagnosed as having an intellectual disability when: (1) the person’s intellectual functioning level (IQ) is below 70-75; (2) the person has significant limitations in adaptive skill areas as expressed in conceptual, social, and practical skills; and (3) the disability originated before the age of 18.5 « Adaptive skill areas » refer to basic skills needed for everyday life. They include communication, self care, home living, social skills, leisure, health and safety, self direction, functional academics (reading, writing, basic math), and work. Individuals with severe intellectual disabilities are more likely to have additional limitations than persons with milder intellectual disabilities.6

An estimated 2.5 million Americans have an intellectual disability.7 The majority of adults with an intellectual disability are either unemployed or underemployed, despite their ability, desire, and willingness to engage in meaningful work in the community.

As a result of changes made by the ADAAA, individuals who have an intellectual disability should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in brain function and other major life activities (for example, learning, reading, and thinking).8 An individual who was misdiagnosed as having an intellectual disability in the past also has a disability within the meaning of the ADA.9 Finally, an individual is covered under the third (« regarded as ») prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of an intellectual disability or because the employer believes the individual has an intellectual disability.10

Obtaining, using, and disclosing medical information

Title I of the ADA limits an employer’s ability to ask questions related to an intellectual disability and other disabilities and to conduct medical examinations at three stages: pre-offer, post-offer, and during employment.

Job Applicants

Before an Offer of Employment Is Made

1. May an employer ask a job applicant whether she has an intellectual disability before making a job offer?

No. An employer may not ask questions about an applicant’s medical condition or require an applicant to have a medical examination before it makes a conditional job offer. This means that an employer cannot legally ask an applicant questions such as:

  • whether she has taken any classes designated for « special education » or « special needs » students; or
  • whether any of her school records indicate that she has mental retardation or an intellectual disability.

Of course, an employer may ask questions pertaining to the qualifications for, or performance of, the job, such as:

  • whether the applicant can read;
  • whether the applicant can put files in alphabetical order; or
  • whether the applicant can place items in numerical order.

Additionally, where an employer reasonably believes that the applicant’s known (that is, obvious or disclosed) intellectual disability may interfere with or prevent the performance of a job-related function, the employer may ask the applicant to describe or demonstrate how, with or without reasonable accommodation, she will be able to perform that function.11    Read more

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