The Federal Americans With Disabilities Act (“the ADA”) forbids and seeks to rectify discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

Definition of Disability

Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law. i.e., in one of three ways:

A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning); or

If he or she has a history of a disability, such as cancer that is in remission; or

If that person is believed to have such an impairment that is not transitory (lasting or expected to last six months or less) and minor–even if that belief is incorrect. Such discrimination is illegal.

Insofar as private business is concerned, disability discrimination occurs when an employer covered by the ADA (or the vocational Rehabilitation Act of 1973–“the RA”) treats a qualified individual with a disability who is an employee or applicant unfavorably because of that disability.

The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause the company “undue hardship” e.g., significant difficulty or expense.

Disability Discrimination & Harassment

Illegal discrimination includes harassment of an applicant or employee. Examples of what the ADA considers harassment include offensive remarks about a person’s disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the complaining party being fired or demoted).

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Reasonable Accommodation

The ADA and the RA require an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless it would cause significant difficulty or expense for the employer.

A reasonable accommodation is any change in the work environment or in the way the employer usually operates to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.

The U.S. Equal Employment Opportunity Commission (EEOC), which administers Federal anti-discrimination efforts, recently issued revised guidance for employers with respect to employees with epilepsy, cancer, diabetes, and intellectual disabilities. These guidelines provide typical examples of what the law currently regards as reasonable accommodations, including:

* An employee with cancer may need to leave work for doctors’ appointments or treatment and recovery; to take periodic breaks or a private area to rest or take medication; to modify office temperature; or to use their work telephone to call medical professionals.

* An employee with diabetes may need a private area to test blood sugar or administer insulin injections; a place to rest to normalize blood sugar; breaks to eat, drink, take medication or test blood sugar; and to take leave for treatment, recuperation, or training on managing diabetes.

* An employee with an intellectual disability may need assistance during the application process, such as having someone read or interpret application materials; training or detailed instructions to do the job; the ability to listen to tape recorded instructions or use detailed schedules for competing tasks; and use of a job coach.

As with other disabilities, all the above disabilities also may require accommodations such as permission to work from home; modified work schedules; reallocation of marginal tasks to another employee; or possible reassignment to a vacant position if the employee is no longer able to perform her current job due to the disability.

Employer Undue Hardship

An employer can be relieved of the legal duty to provide a particular accommodation if it claims that doing so would cause it “undue hardship.” The law doesn’t exempt employers from all hardships, only from those which are “undue.” This is grist for litigation, since what is “due hardship” versus “undue hardship” is ultimately a matter of opinion or at most, a consensus.

Richard Turyn is a BSBN Partner and the Editor of BSBN Direct. BSBN Partner Marshall Bellovin advises and represents employers about employment discrimination and many other employment law issues. Mr. Bellovin can be contacted at mbellovin@ballonstoll.com.

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