It is illegal to discriminate against a person in hiring, firing, or other terms and conditions of employment on the basis of their disability. Disability under this law is defined as the state of having a physical or mental impairment that substantially limits one or more major life activities.
The law also protects persons who might have a record of such an impairment (such as cancer that is in full remission) or might be perceived or rumored to have a disability even if they do not (such as untrue rumors that one is HIV positive).
The term “substantially limits” is difficult to define, and the courts are doing so on a case by case basis. But basically it means that for that person, the disability is significantly restricting a major life activity such as walking, standing, seeing, working (must be a broad range of jobs), or reasoning. Blindness, deafness, and most major diseases that affect motor skills are clearly within the definition. More difficult to determine are things like back injuries and emotional stress reactions.
The disability normally has to be of a long term or permanent nature, and not one such as a temporary injury normally covered by worker’s compensation or temporary disability insurance. However, this disability law can be of special help to persons who need to get back to work, such as those injured while off work or who do not have insurance and need to get back to work before the injury is completely healed.
When an injury takes a long time to heal, or may not be progressing to a cure in a normal fashion, and the treating doctor states that the employee can return to work with certain limitations, the employer must review the job and see if reasonable accommodations can be made to allow the employee to come back to work. Also if light duty work or a change of job is available to other employees, then this employee should have the same opportunity.
If the disabled applicant or employee is “qualified” for a particular job with a reasonable accommodation, then the employer must treat this person the same as all others in hiring and terms of work. To be qualified, the disabled person must be able to perform the “essential functions” of the job, but not necessarily all the job functions if the others are not essential. As an example, if it helps to be able to drive a car occasionally at work but the job does not depend on it, then an applicant’s inability to drive does not disqualify him/her from the job.
Applicants cannot be asked about any disability they may have until after an offer of employment has been made. This is to make it clear that the applicant was otherwise qualified, and if after the discovery of a disability the employer withdraws the offer, the issue is reduced to the disability question of whether the essential functions of the job could be performed with a reasonable accommodation for this disability.
The definition of a “reasonable accommodation” is primary to the disability law. It is any modification to a job, a work environment, or an employment practice that allows an individual with a disability to perform properly in the job. The employer must be given notice of the need for a reasonable accommodation, and then is required to enter into discussions with the person as to what can be done that would not create an undue hardship on the business in terms of cost or effective operations.
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