Reduce The Risk: Protect Your Business From Disability Discrimination Lawsuits

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The federal government and many states have passed laws that require employers to accommodate disabilities for both current employees and those who apply for positions within the company. Failure to do so can lead to disability discrimination litigation that can become very costly for your company. These tips can help you avoid a discrimination claim and could help you find or retain a valuable employee.

The Americans With Disabilities Act

One federal statute that protects employees with disabilities is known as the Americans With Disabilities Act (ADA). This law prohibits discrimination against people with disabilities and requires an employer to accommodate employees with disabilities whenever possible.  It applies to private sector businesses. In addition to ADA, many states have their own legislation that is designed to protect people with disabilities.

 The Rehabilitation Act

Similar to ADA, the Rehabilitation Act prohibits discrimination on the basis of disability.  The main difference is that the Rehab Act focuses on programs led by federal agencies, those that receive federal financial assistance, and federal contractors.

Who Is Covered Under the ADA And The Rehab Act?

The ADA protects employees who are considered “qualified” workers. What this means is that an employee or potential employee must have a disability that is legally recognized. The employee must also be able to perform most basic and necessary job duties without additional accommodation. There are basically three criteria that qualify someone under the ADA:

  1. An employee has a physical or mental handicap that limits a major life activity, such as walking, talking, hearing or reasoning.
  2. A person with cell growth issues or improper brain, immune and respiratory systems are covered, as are those with episodic impairments, such as epilepsy or asthma, are covered as well.
  3. Diseases in remission, such as cancer, are included if the employee can suffer limitations if the disease comes out of remission, even if they have no limitations currently.

It’s worth noting that for the disability to be covered under either act, it must be a long-term disability. Temporary disabilities such as broken bones are not covered.

What is Reasonable Accommodation?

You are required by law to provide “reasonable accommodation”, which is any change or adjustment to a job or work environment that allows an individual with a disability to participate.  However, it is the responsibility of the employee to notify you if they have a disability that requires accommodation. Once you are informed, you must engage in what is known as a flexible interactive process with the employee to determine what accommodations are effective yet reasonable.

Examples of Reasonable Accommodations

  • providing or modifying equipment or devices
  • job restructuring
  • part-time or modified work schedules
  • reassignment to a vacant position
  • adjusting or modifying examinations, training materials, or policies
  • providing readers and interpreters
  • making the workplace readily accessible to and usable by people with disabilities

If the accommodation would cause your company undue hardship, you do not have to provide it. For example, you may not be required to retrofit a company vehicle for a person who is paralyzed. When determining undue hardship, you can consider the cost, the size and resources of your business, your business structure and what effect the accommodation would have on your company.

Drug And Alcohol Abuse As Disability

An employee or potential employee who has a history of drug abuse or alcoholism may be considered disabled under law depending on certain circumstances. Alcoholism is a covered disability, which means you cannot fire someone or refuse to hire them because they are an alcoholic. You can fire an employee who does not meet performance or behavior standards while working due to alcohol abuse. An employee who is currently using illegal drugs isn’t covered under law.  The individual is covered if they have undergone treatment and are no longer abusing drugs.  It’s important to remember if the employee is recognized as disabled, reasonable accommodation must be provided.

Laws that protect people with disabilities are fairly strict and dismissing an employee or failing to hire someone simply because they have a disability can lead to a disability discrimination claim against your company. In addition, there are strict rules about what medical information you can ask a potential or current employee and what information can be shared with others within the company.  As always, this information is not intended to be and should not be construed as formal legal advice.  We recommend you contact an local attorney for advice on specific legal problems.

Photo credit: Pressmaster/Shutterstock

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