Summary
When a company hires workers through a staffing agency, both the agency and the company must follow the ADA. This law protects people with disabilities from unfair treatment. It's a good idea for the staffing agency and the company to write down in their contract who will handle things.
Do Companies that Hire Contractors Have to Follow the ADA? also appears on our Substack Newsletter, Making Work Accessible, as part of our Tough Topic Thursdays series.
Tough Topic: Do Companies that Hire Contract Workers Have to Follow the ADA?
Many businesses use contract workers placed by staffing agencies. But who is responsible when a worker requests a disability accommodation?
The Tough Answer: Yes
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.
Remember: The ADA applies to employers with 15 or more employees.
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 Equal Employment Opportunity Commission (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.
This advice from our previous article – Can I Be Fired for My Disability? – also applies here.
If your disability affects your ability to perform your job, and you need a modification to the workplace or job duties to do so, you must disclose your disability and request a reasonable accommodation.
Once a contractor informs an employer of a disability and the need for accommodation, the employer must engage in an “interactive process” to determine if a reasonable accommodation can be provided. This involves working with the contract worker to identify suitable accommodations that would allow them to perform the essential functions of their job. Accommodations may involve making changes to the work environment, providing assistive devices, or modifying job duties.
Contractor Obligations
While the ADA protects individuals with disabilities from discrimination, it also requires employers and contract workers to both engage in the interactive process. The employer and contractor collaborate to identify and implement reasonable accommodations. If a contract employee fails to disclose their disability, fails to engage in the interactive process, or rejects reasonable accommodations (and, as a result, cannot perform their job duties), the employer(s) may have grounds for termination.
Resources for Employees and Employers
- Equal Employment Opportunity Commission (EEOC): Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms
- Equal Employment Opportunity Commission (EEOC):: Application of EEO Laws to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms
- Job Accommodation Network (JAN): Practical Guidance on Contingent Workers and the ADA
- US Department of Labor (DOL): Employers and the ADA: Myths and Facts
- US Department of Labor (DOL): Employment Rights: Who has Them and Who Enforces Them
Are you a contract worker with a disability? We’re listening.
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In Summary
When a company hires workers through a staffing agency, both the agency and the company must follow the ADA. This law protects people with disabilities from unfair treatment. It's a good idea for the staffing agency and the company to write down in their contract who will handle things.