FAQs ABOUT STATE AND FEDERAL DISABILITY DISCRIMINATION LAW

by Employment Law Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
Norwood Corporate Center
1500 Providence Highway, Suite 33
Norwood, MA 02062
(781) 551-0800
Llockard@leslielockard.com
www.leslielockard.com

Dealing with disabled employees is one of the most difficult tasks an employer faces. Disability discrimination laws are unfortunately very complex, and fraught with many dangerous litigation risks if not followed correctly.

WHAT DO STATE AND FEDERAL DISABILITY DISCRIMINATION LAWS REQUIRE?

The federal Americans With Disabilities Act (ADA) and the state disability discrimination statute are generally pretty similar. Both prohibit employers from discriminating against disabled people, and also impose an affirmative obligation to provide reasonable accommodations to disabled employees, if doing so will permit them to perform the essential functions of the job.

The state statute applies to employers of 6 or more employees, and the federal statute applies to employers of 15 or more employees. The word “disability” is defined broadly in these statutes.

It does not simply mean people who are blind, deaf or quadriplegic. A person is considered disabled if he has any physical or mental impairment which substantially limits him in one or more of his major life activities, such as speaking, hearing, walking, breathing, reproducing, etc. Cancer, AIDS, epilepsy, serious back problems, complications from pregnancy and schizophrenia may all be considered disabilities.

One significant difference, however, is that the U.S. Supreme Court has interpreted the federal ADA more narrowly than the state law on the topic of what constitutes a disability. Under federal law, an employee is not deemed disabled if he is not substantially limited in a major life activity when using a corrective device, such as glasses.

Under the state law, this determination is made without regard to the effect of a corrective device. For example, a visually impaired employee’s limitations are evaluated when he is not using his glasses. Both statutes protect not only those who are presently disabled but also those who were disabled in the past, and those who are perceived to be disabled even if they are not.

Thus, an employee who is fired because she was once hospitalized for depression, but now is fine and able to do the job, would be protected because she would have been fired because of a past disability. Also, somebody who was fired because the employer thought he had AIDS, when he did not, would be protected. That person would have been fired because the employer thought he had a disability.

HOW DO DISABILITY DISCRIMINATION STATUTES APPLY TO ALCOHOLICS AND DRUG USERS?

Under both the state and federal discrimination statutes, alcoholics may be deemed disabled, but recreational drinkers usually are not protected. However, even if the employee is an alcoholic, employers generally may require that employees not be under the influence at work, and may hold the alcoholic employee to the same standards of performance and behavior as other employees. Current illegal drug users are not protected under either statute.

HOW DO DISABILITY DISCRIMINATION STATUTES APPLY TO EMPLOYEES WHO POSE A DIRECT THREAT TO THEMSELVES OR OTHERS?

Employers may refuse to employ a disabled person if doing so would pose a direct threat to the health or safety of himself or others. However, this standard is generally applied very narrowly, in favor of the employee. Before disqualifying an employee or applicant as a “direct threat”, be sure to consult an employment attorney. There are many steps that must be taken before such a decision can be made with reasonable safety.

WHAT DO DISABILITY DISCRIMINATION LAWS REQUIRE AS TO REASONABLE ACCOMMODATION OF DISABLED EMPLOYEES?

Employers are required to reasonably accommodate both employees and job applicants. To reasonably accommodate disabled employees, employers may be required to do such things as:

• make their workplaces accessible,

• modify an employee’s workstation or lower drinking fountains,

• purchase special equipment such as a sound amplification device to permit a hearing impaired employee to use the telephone,

• modify employee work schedules,

• permit employees to take leave of absence for medical treatment or rehabilitation, if doing so would permit them to return to work, able to perform the essential functions of their job, or

• allow employees to work at home (if the essential functions of the job can be reasonably done at home).

Employers generally are not required to relax performance standards.

For example, if one of the essential functions of their position is that secretaries are required to type 80 words per minute, the employer does not have to employ people who cannot meet those standards. Employers also generally do not have to create jobs for disabled workers as an accommodation, or eliminate any of the essential functions of an employee’s position in order to accommodate a disability.

For example, if a receptionist position requires the employee to spend 95% of his time answering the phone and 5% of his time typing in between phone calls, answering the phone would be an essential function of that position, and typing would probably be considered an incidental function. The employer probably would not be required to hire someone who is totally deaf and could not use the phone because that person would not be able to do one of the essential functions of the receptionist’s position. (But before deciding not to hire the person, the employer would need to consider whether any reasonable accommodation could allow the employee to perform that function. For example, if the employee was not totally deaf, and could answer the phone if provided with an amplification device, the employer would probably have to provide one.)

Incidental functions of a position are treated differently from essential functions. Employers are generally required to transfer incidental functions to other employees if the disabled employee can do the essential functions of the position. Thus, in the receptionist example, in which the receptionist generally spent only 5% of the time typing, the employer would probably be required to transfer that incidental typing to another employee.

JOB DESCRIPTIONS MAY BE HELPFUL EVIDENCE IN CASES OF ALLEGED DISABILITY DISCRIMINATION

It is advisable for employers to set down in writing what they consider to be the essential functions of each position. This will be helpful evidence should an employer have to terminate an employee for being unable to perform his job’s essential functions. This will be much more helpful evidence than if the employer claims, after a problem with a particular employee arises, that the employer considered a certain function of his position essential.

WHAT IS THE “INTERACTIVE PROCESS” REQUIRED BY DISABILITY DISCRIMINATION STATUTES? Employers need to be very careful before terminating or refusing to hire an employee on the grounds that a disability will prevent him from doing the essential functions of the position. To be reasonably safe in making such a decision, you would need to be able to demonstrate that you made good faith efforts to accommodate the employee. You would also need to show that you engaged in a dialogue with the employee and tried in good faith to come up with a mutually agreeable accommodation which could permit the employee to do the job. It is generally good to communicate with the employee in writing as much as possible, so that a record is created of your efforts to make an accommodation. Express willingness to accommodate. Thoroughly consider every option the employee suggests, and try to come up with other options that might be effective, even if the employee doesn’t suggest them. Be flexible. Do not be overly hasty. And make sure that your decision is based on the specifics of the particular employee’s situation, and not just on your assumptions about what an employee with his or her medical condition could or could not do. Be sure to consult an employment attorney before deciding to hire or fire a disabled employee.

THIS MEMORANDUM IS FOR GENERAL INFORMATION ONLY, AND IS NOT INTENDED TO PROVIDE LEGAL ADVICE AS TO ANY PARTICULAR SITUATION. EMPLOYMENT LAWS ARE CONSTANTLY SUBJECT TO CHANGE. QUESTIONS ABOUT PARTICULAR SITUATIONS SHOULD BE DIRECTED TO A KNOWLEDGEABLE EMPLOYMENT ATTORNEY.

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