The Americans with Disabilities Act is a major employment law that gave long-overdue rights to disabled people.

Employers must get firm control of  hiring and termination policies. This would have been a great idea even without ADA -- now it is an absolute requirement. To ensure that consistent, lawful employment practices are followed, you should have a "no exceptions" policy that only the top-most management official in your organization has "hire and fire" authority.

And before ANY employee is terminated, ask your attorney to go through the file and give you an opinion about the chances of persuading a jury that a termination is right, fair and lawful.

Under the ADA, written job descriptions are essential. Before you interview applicants -- even before you advertise a position -- WRITE a job description covering the position to be filled. This is important, because under ADA, you may only base your hiring decisions on an applicant's ability to perform the "main functions" of the job.

You should only use job standards that are essential to the performance of the job. The use of non-essential job standards that "screen out" the disabled (lifting, hearing, eyesight and other requirements) may result in liability.

If the deciding factor in whether to hire or fire a person is a disability, you must prove that it interferes with the "essential functions" of the job. But when is a job function "essential?" Under the Americans with Disabilities Act (ADA), "essential" is when:

-- Performing the function is "the reason the position exists."

-- Only a limited number of employees can perform those duties.

-- The position is so highly specialized that the person in the job is hired because of that expertise.

To make the all-important decision of what is an essential function, here are six other examples of evidence you can point to:

1. Written job descriptions that set forth what the essential functions are, prepared before you advertise or interview for the job.

2. The employer’s judgment of what is essential.

3. The amount of time spent doing that function.

4. The consequences of not requiring the person to perform that function.

5. The function is cited in a collective bargaining agreement.

6. The people who previously performed that job -- or similar jobs -- identify the task as essential.

A well-crafted, written job description will be the best evidence when your attorney has to defend your company against a disability discrimination charge. Job descriptions should be written with consideration for the intellectual as well as physical demands of the job.

In addition to intentional discrimination, employees and job applicants may also be able to prove disability discrimination by showing that your job description has a discriminatory effect on people with disabilities.

You should consult a rehabilitation counselor, job engineer, and a doctor to see if applicants can do the job functions you set out in your job description. An applicant with an obvious disability should also be asked to explain HOW they can perform the essential functions.

Everyone in your company who does job interviews should be trained in "disability etiquette" to feel comfortable interviewing applicants with disabilities.

Interviewers should be trained to ONLY ask essential job-related questions, like: (for a position that requires heavy lifting), "Can you lift up to 50 pounds?" Applicants with disabilities should have an opportunity to talk about or suggest possible accommodations you can make for them.

Under ADA, it is unlawful to ask pre-employment questions about an applicant's disability, so it is essential that interviewers be trained NOT to ask certain questions.

During an actual job interview, do NOT make notes about the physical or mental characteristics of the applicant. Do NOT ask:

-- about the braces or artificial limb an applicant is wearing or how they came to need them

-- if they are in good health

-- if they have ever had a drug problem

-- if they have ever had an injury or disease

-- if they have ever had a drinking problem

-- if they or anyone in their family has a history of illness or injury

-- if they have ever been treated by a psychiatrist or psychologist

If an applicant volunteers information about a medical condition (such as cancer, heart disease, diabetes, emphysema, asthma, "stress"), do not ask about the nature or extent of the condition or whether it is in remission.

Once an applicant has asked about an accommodation for a disability, you may ask them what they will require to perform the work. Make sure they read and understand the job description and ask if the applicant is able to perform each duty listed in it.

ADA not only covers new job applicants, it covers current employees returning to work from disability leave who may require some kind of accommodation.

Special issues arise where the return to work involves Workers' Compensation. When an employee is returning to work after an illness or injury, you may only ask about their ability to perform essential job-related tasks ONLY if the questions are consistent with business necessity. An evaluation of the disability, as it relates to essential aspects of the job, should always be done.

Supervisors should be trained to ONLY ask questions about the employee's ability to perform the job FUNCTIONS listed in the job description.

Two points about job interviews: First, remember that communications skills can be difficult to measure for many people with hearing and speech impairments. And body language can be an inaccurate measure for many people with disabilities.

Second, in many cases the actual job interview (even with a well-trained interviewer) is not always an accurate assessment tool. Remember, some people interview better than they work; some people work better than they interview.

Any prohibited questions that are on company forms must be eliminated. For example: one common question found on many application forms, "Do you have any physical or mental disabilities that would effect your ability to perform the job?"...your attorney will tell you: that question is unlawful...you should eliminate it from your applications today!

Questions seeking information about an applicant's physical or mental condition before a job offer may also result in a disability discrimination charge.

Unless you are a physician, don't make any medical judgments about a person with a disability. Many employers will reject applicants with readily apparent disabilities because they assume the applicant will be unable to do the job. But under ADA, a determination must be made by a trained professional to see if the applicant can perform the "essential functions" of the job.

Selective pre-employment physicals are prohibited under ADA. Physical examinations can only be done after a job offer is made and only if ALL employees must take a physical.

Another caution on records of physical exams: you must have a security system for maintaining the confidentiality of those records. They must be kept separate from other employee records and files.

A final point: your drug testing program may require modification. Your attorney should be consulted on this TODAY.