Disability discrimination litigation seems to be on the rise. For this reason, it is critical for employers to understand their obligations and the protections provided to employees and applicants under both state and federal laws. These laws provide that individuals (employees and applicants) with a disability are protected from discrimination, and may need to be provided a reasonable accommodation to permit them to obtain employment or remain employed.
Federal Law:
Americans With Disabilities Act: This Act governs employers with 15 or more employees and prohibits the discrimination against a “qualified individual with a disability”. The law also requires that the employer provide a reasonable accommodation for a qualified applicant or employee’s known disabilities, unless doing so would impose an undue hardship (which is an extremely difficult burden to prove).
ADA Amendments: Recently the ADA was amended and the definition of disability was revised to make it easier for individuals to establish the existence of a disability for legal protection.
California Law:
The Fair Employment and Housing Act: This Act governs employers with 5 or more employees and provides greater protection to disabled individuals than under federal law. Generally, as with the federal statutes, California employers are prohibited from discriminating against an individual with a disability and must also engage in an “interactive process” to discuss opportunities and obligations for “reasonable accommodations”.
Under California law a person is “disabled” if they are “limited” in one or more of the major life activities (as opposed to “substantially limited” under the ADA).
Protection based on Medical Conditions: California law also prohibits discrimination based on a “medical condition” which includes any type of a health impairment that is related to or associated with a diagnosis of cancer, genetic characteristics, and AIDS and HIV.
Protection based on “Regarded As” Status: Applicants and Employees are protected from discrimination if they are “regarded as” being disabled.
Both State and Federal law protects individuals who are “regarded as” having covered disabilities, even though they may not actually be disabled. An example is the employee who has fully recovered from a disabling event such as a heart attack, but is still treated by the employer as still having some present disabling condition. The law seeks to protect individuals from being treated less favorably because of a perception that they are disabled, even in those circumstances where there is no actual disability.
To avoid “regarded as” claims, be sure that you do not treat any employee or applicant differently once you become aware of any prior disabling condition. It is up to the employee/applicant to disclose any condition that would classify them as “disabled”.
Legal Obligations:
What Should I Do if An Applicant or Employee Discloses, or I Become Aware of, their Disability Condition?
The initial question that must be asked is whether the applicant or employee is a qualified individual who can perform the essential functions of the position, either with or without a reasonable accommodation?
That question must then be broken down into segments:
A. Is the employee or applicant qualified for the job?
Do they meet the minimum qualifications of the position? Review their resume and application form and interview them as you would any other person for the position. Make an initial determination as to their qualifications for the position.
B. What are the essential functions of the position? It is critical to have a detailed job description which details the physical and mental requirements of the position so that it can be determinated what is an “essential” function and what is a “non essential” function.
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Attendance can be established as an “essential function” and should be included in job descriptions.
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If any technical skill or expertise is required, identify it.
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If there are any specific expectations, goals, or quotas, they should be included.
C. What type of “accommodation” would be considered “reasonable”? Once the employee or applicant is determined to be “qualified” to perform the “essential functions”, but can only do so with an accommodation, then the employee has the initial burden of requesting or identifying the need for an accommodation. It is beneficial to ask the employee what they believe will help accommodate the disability.
D. Engage in a Good Faith On Going Interactive Process with the Employee/Applicant. California law requires that employers engage in an on going manner an “interactive process” with the disabled individual to discuss and determine if a reasonable accommodation can be made.
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Discuss with the applicant or employee (and document) what aspects of the job cannot be performed and why.
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Discuss if there are other available and open positions that the employee/applicant could perform.
Any accommodation proposed by an employee must be objectively reasonable. Not every request for an accommodation must be met if such “accommodation” would interfere with business operations and/or is not “reasonable”.
A leave of absence under the company’s policies as contained in the Employee Handbook can be considered a “reasonable accommodation” . However, the leave does not have to be indefinite. If your policies contain time limits for other types of leaves, then the same time limits could be considered for a leave of absence for a disability.
If the employee/applicant requests some type of job restructuring, the request only has to be considered with respect to a position’s nonessential duties or marginal functions. Restructuring essential job functions is not required, even if an employee claims it is “reasonable” to do so.
An employer is not required to create a new job, move another employee, promote a disabled employee, or deprive any other employee of their employment to provide a reasonable accommodation. When appropriate, conduct a functional assessment of the employee’s ability to perform the essential functions of a position, noting any specific limitations that can be evaluated for potential accommodations.
E. Can the employee be terminated? It is never a wise decision to terminate any employee who has disclosed a disability condition as such could easily result in a claim of disability discrimination. It is imperative that prior to any termination decision, the entire situation be evaluated to determine whether:
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The employee is “protected” as a “disabled” individual;
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The employer has met its legal obligations to engage in the “interactive process”;
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Whether an accommodation can be made; and
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How have other similar situations been handled by the employer so that there is consistency of application for policies and procedures.
Once these factors are considered, the termination decision can be evaluated and the risks of litigation determined.
And remember, document, document, document.