Disability Discrimination FAQs
The laws that protect people with disabilities in the workplace can be confusing to both employers and employees. Below are answers to some frequently asked questions about the Americans with Disabilities Act ("ADA") and federal and state discrimination laws.
What is a Disability Under the ADA?
Qualified individuals with disabilities must have a physical or mental impairment that substantially limits one or more major life activities. In order to be "substantially limiting" under the ADA, the impairment must be either permanent or long term. This means that an injury or short term illness will likely not be considered a disability. For help with a short term illness, learn more about the Massachusetts Earned Sick Time Law.
How Do I Know if My Disability Qualifies for Protection?
The key factor is whether your condition limits a "major life activity." Things that are recognized as major life activities include walking, seeing, reading, bending and communicating. It also includes major bodily functions. These can include the immune system and digestive, bowel, bladder, respiratory, neurological, circulatory, endocrine and reproductive functions.
What Employers are Covered by the ADA?
The ADA's protections against disability discrimination apply to all employers with 15 or more employees. This includes private employers as well as state and local governments. Federal employees receive similar protections under the Rehabilitation Act of 1973.
Outside of the employment context, the ADA also prohibits disability discrimination in places of public accommodations.
Does My Employer Have to Accommodate My Disability?
Employers covered by the ADA have to make reasonable accommodations for an employee with a disability. Notice that an employee has a disability triggers certain duties for the employer. FIrst, the employer must engage in an interactive process with the employee. This process is meant to determine if an accommodation is needed and reasonable. If there is a reasonable way to accommodate the employee, the employer must do so.
Who is a Qualified Individual?
In order to be protected under the disability laws, you have to be a qualified individual with a disability. This means that you have to be able to perform the essential functions of the job if you are given reasonable accommodations.
What Employees Are Eligible for Sick Time?
This law applies to almost every employee in Massachusetts. You do not need to be full time, and you can be a temporary or seasonal worker.
One exception is people who are employed by cities or towns, including teachers and other municipal workers. The law states that it does not apply to these employees unless the city or town has enacted a by-law accepting the provisions of the act.
Employees of the federal government are also exempted from this law.
What is a Reasonable Accommodation?
The employer is not always required to make changes to the work environment. They are only required to take measures if they are reasonable and would allow the employee to perform the essential functions of the job. What is reasonable is often different in different circumstances. Something that would impose an undue hardship on the employer is generally not required.
Common measures include the purchase of special chairs for desk workers with back problems, assistive technologies for employees with vision or hearing problems, or adjustments in work schedules.
Employers generally are not required to create a new position or allow leave beyond what is required by federal law.
Collective bargaining agreements can also complicate the disability analysis. If a requested transfer would violate another employee's rights under a union contract, that transfer may not be required.
Can I Get an Accommodation on a Job Application or Test?
If you disclose your disability and request an accommodation you should be given one if it is reasonable. This could be extra time for a written test if you have a learning disability. It could involve being excused from certain parts of a test. For example, if lifting is not an essential function of the job you might be excused from a lifting test. It can also involve allowing you to use assistive devices in taking the test.
What is an Essential Function of the Job?
These are duties that are fundamental to the job at issue. If you drive a truck or a bus, being able to see is an essential job function. An employer could probably not accommodate a sight impairment for this job. But if your disability involves one of your arms or legs there are likely ways to make it possible for you to do the essential job function, which is driving safely.
If you are an office worker, you most likely have to be able to access and understand the written word, which would be an essential job function. This function could be accommodated for someone with a visual disability through the use of assistive technology.
Do I Have to Disclose my Disability on a Job Application?
You do not have to disclose this in the application or interview process. The employer cannot by law refuse to hire you because of the disability. There is still a practical risk that they would hold the disability against you in the hiring process. If you need special measures to allow you to do your job you will eventually need to inform the employer. But it does not have to be on the job application.
What is Perceived Disability Discrimination?
Taking action against an employee for being "regarded as" having a disability is also prohibited discrimination. This is also known as perceived disability discrimination. You have to have some kind of impairment for this to apply. It most often happens when people return to work after a leave and the employer assumes they are more limited than they really are.
An example is an employee who is HIV positive but not experiencing symptoms. HIV does affect major bodily functions, but the employee may have no functional limitations at work. An employer should not take action against this person based on an assumption about his or her condition.
Another example is someone with a mental health issue. The mental health situation can qualify as a disability. But employment action taken based on the stigma of mental health rather than an actual limitation could be unlawful.
How Can I Tell if My Employer is Discriminating?
It can be hard to tell if a job action is prohibited discrimination based on your medical condition or disability. The first question is whether you were treated differently than a co-worker who is a person without a disability. This can come up if you are disciplined or fired for something that others do without consequences. A second question is whether anyone has made negative comments about your medical condition or disability. If you are in doubt, you should contact an employment lawyer for a full analysis.
How Much Time Do I Have to Make a Discrimination Complaint?
Federal and state law require you to make a disability complaint within 300 days of the relevant event. This event is usually the adverse employment action. This can be the date you were terminated or the date you learned that they refused to hire you. For a failure to accommodate claim, this is usually the date you were told they were not going to accommodate your disability.
How do I Make a Discrimination Complaint?
You have to first file a claim with either the Equal Employment Opportunity Commission or the Massachusetts Commission Against Discrimination. You will later have the right to withdraw that claim and file in court. As long as you go to one of these agencies within 300 days of the relevant event you will preserve your right to your claim.
How We Can Help
We can help you understand your rights under the discrimination laws and your options for protecting those rights. You can use the button below to schedule a call back from a member of our team, give us a call at 781-784-2322, or fill out our web form to let us know a little more about your situation.
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