October is National Disability Employment Awareness Month in the United States, and this year we’re featuring two series of blog posts! To kick off the month, we started the series “Working with Disabilities” with this post on Accommodations 101. Today’s post begins the second series, “NDEAM Topics,” which features deeper dives into some of those trickier topics and questions – and we’re starting with one that I’ve been asked quite often: do companies that hire contractors have to follow the ADA?
Short Answer: Yes!
Many businesses use contract workers placed by staffing agencies. But who is responsible when a worker requests a disability accommodation?
While the Americans with Disabilities Act (ADA) primarily applies to employees, it also extends to individuals who work for companies as contractors. Employers of contingent workers, such as a staffing firm and the client employer, are both responsible for following the ADA. This means that both entities, together and separately, can be held responsible for providing employee accommodations.
Sometimes, covered entities dispute over who is actually a contract worker’s employer; the staffing agency or the client. However, this dispute is unnecessary. In a contingent work arrangement, generally the staffing firm and the client are both considered “joint employers.” According to the EEOC, the term “joint employer” refers to two or more employers that are unrelated, but each exercises enough control of an individual’s work to qualify as their employer.
Put it in the Contract
Contingent work arrangements can often complicate the employment relationship when contracts do not adequately specify employer responsibilities. These responsibilities may be joint – applying to both employer entities. In particular, staffing agencies and client employers sometimes both misinterpret their responsibilities to accommodate workers with disabilities and abide by the ADA.
It may be helpful to include, as part of the staffing firm/client contract, which entity will be responsible for obtaining and storing disability-related information, asking disability-related questions, or requiring exams when a contingent worker requests reasonable accommodation to perform job duties. However, while this can be a practical way to proactively address the issue of responsibility, both a staffing firm and the client employer can still be liable for violations of the ADA – even when a contract delegates responsibilities.