Disability Issues in Employment
Vermont law prohibits discrimination in employment because a person is an individual with a disability. Under the law, a disability is any physical or mental impairment that substantially limits one or more major life activities (like sitting, standing, walking, breathing, concentrating or sleeping). The law also protects a person with a record of a substantially limiting impairment (for example, a person with a history of cancer that is now in remission) and any person who is regarded (or treated by an employer) as if s/he has a substantially limiting impairment.
Vermont’s anti-discrimination law only protects a person who is qualified for the job s/he has or wants. The individual with a disability must meet job-related requirements (for example, education, training, or skills requirements). S/he must be able to perform the job's essential functions (i.e., its fundamental duties) either with or without a reasonable accommodation. Employers do not have to hire someone with a disability over a more qualified person without a disability. The goal of the law is to provide equal access and opportunities to individuals with disabilities, not to give them an unfair advantage.
Employers are required to make sure that people with disabilities:
have an equal opportunity to apply for jobs and to work in jobs for which they are qualified;
have an equal opportunity to be promoted once they are working;
have equal access to benefits and privileges of employment that are offered to other employees, such as employer-provided health insurance or training; and
are not harassed because of their disability.
The Vermont Human Rights Commission looks to the federal Americans with Disabilities Act (ADA) for guidance in its interpretation of Vermont’s anti-discrimination law. The ADA limits the kinds of medical information that employers may ask of a job applicant or employee. For example, during an initial job interview, the ADA generally does not allow an employer to ask questions about an individual’s disability. Employers are, of course, free to ask questions to determine whether a candidate has the right training and skills for the position. There are other ADA rules about information that may or may not be asked of candidates and employees. Employers can find these rules on the federal EEOC website (www.eeoc.gov/types/ada.html).
In general, an employer is required to provide a “reasonable accommodation” to an employee with a qualifying disability if it is necessary to allow the employee to fulfill her/his job duties. In most situations, the employee must ask the employer for a reasonable accommodation before the employee is required to provide it.
A request for a reasonable accommodation can be oral or written, although it is usually much easier to prove that a request was made if it is written. If there is more than one effective reasonable accommodation available, the employer can choose the one she/he wishes to provide the employee.
Some frequently asked questions related to disability issues in employment:
I can do the all the tasks involved in my job but my disability only allows me to work six hours a day and they need someone here eight hours a day. What happens?
If being at work eight hours a day is an essential part of the job, then the employer would not have to accommodate you by allowing you to only work six hours a day. If your disability, even after being accommodated, does not allow you to perform the essential functions of the job, then your employer does not have to provide an accommodation because it would not be reasonable.
Is there a cost analysis for employers to consider when determining whether or not to grant a request for a reasonable accommodation?
ADA requires that an employer provide “reasonable accommodations” to qualified individuals with disabilities. Employers do not have to provide an accommodation that causes an “undue hardship.” An “undue hardship” has been defined as significant difficulty or expense in providing the accommodation. The analysis focuses on the particular employer’s resources and whether the accommodation is unduly extensive, substantial, or disruptive, or would fundamentally alter the nature or operation of the business.
What type of medical information or records do I have to give my employer?
The ADA separates the hiring process into three stages and each stage has different rules regarding the permissibility of disability-related questions and medical examinations.
· Before an individual has been offered a job, the ADA prohibits all disability-related questions and medical examinations.
· After an individual has been offered a job but before she/he has begun work, the ADA allows disability-related questions and medical examinations, as long as all other entering employees are subjected to the same examinations and medical questions.
· Once an individual begins on the job, the law allows disability-related questions and medical examinations only if they are job related and consistent with business necessity.
At all stages, any medical information that is gathered must be kept confidential. Further, when an employee requests an accommodation, an employer may ask the employee for reasonable documentation of his/her functional limitations written by an appropriate professional, such as but not limited to a doctor or rehab counselor. Once a request for accommodation is made, it is very important for employers to engage in an interactive process (conversation) with the employee to determine what kind(s) of reasonable accommodation(s) would meet the needs of the employee. This is just a brief guideline for a very complicated process. More detailed information about how to address and respond to specific situations should be sought from legal counsel.
Must an employer accommodate mental disabilities as well as physical disabilities?
If an individual with a mental disability is qualified for the job and an accommodation is reasonable, then an accommodation must be provided. The main question to consider in determining if someone is a “qualified individual” for a specific job is: can he/she perform the essential functions of the job, either with or without an accommodation?
For example if it is an essential function of the job to greet the public in person and an employee has developed a fear of talking with people and now is now unable to do so, he/she probably is unable to perform an essential function of the job.
However, if an employee has developed Obsessive Compulsive Disorder (OCD) and cannot type on their keyboard unless they wear rubber gloves the employer would probably need to make that accommodation because with the accommodation the employee could still perform that essential function of the job.
My employer provides me with an accommodation for my disability. My co-workers tease me about the accommodation. What can I do?
You should tell your supervisor or a designated person who deals with harassment allegations. Hopefully, some intervention can stop the teasing before it reaches the level of harassment. Sometimes making other employees aware of the impact of their “teasing” on a colleague is enough to stop the behavior. The harasser should be made aware by management that if he/she continues the “teasing” behaviors disciplinary actions will follow.
I don’t have a disability, but during a job interview I could tell by the questions being asked of me that the employer thought I did have a disability. I was not hired. Could this be unlawful discrimination?
Yes, it could be. If the reason you were not hired is because you were “regarded as” having a disability, that would be illegal. As you can imagine, this could be very difficult to prove. First, there would need to be proof that you were “regarded as” having a disability. Second, you would need to prove that the employer’s conclusion that you had a disability was the reason or one of the reasons you were not hired.
Much of the information above is from The Human Resource Guide to Answering ADA Workplace Questions, 5th edition, David Fram, Esq. (National Employment Law Institute Publication, 2007).