Pospis Law, PLLC vigorously advocates for individuals who have been discriminated against because of a disability (or perceived disability).
Disability discrimination is prohibited by federal, state, and local laws. Generally, disability discrimination occurs when an employer or other covered entity treats a qualified individual with a disability who is an employee or applicant unfavorably because s/he has a “disability”.
The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because his or her spouse has a disability.
Definition of “Disability”
Not all medical conditions qualify as a “disability” within the meaning of the anti-discrimination statutes. Under the Americans with Disabilities Act of 1990 (ADA), as amended by the ADA Amendments Act of 2008, the term “disability” means, with respect to an individual,
a physical or mental impairment that substantially limits one or more major life activities;
a record of such an impairment; or
being regarded as having such an impairment.
The term “disability” is defined more broadly under the New York State and City laws than under the ADA, in that (for example) those laws do not require the employee to demonstrate that the impairment “substantially limits one or more major life activities”.
Employers are required to provide a “reasonable accommodation” to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.
Thus, one form of disability discrimination is the failure to provide a reasonable accommodation for a known disability unless doing so would subject the employer to undue hardship.
Examples of reasonable accommodations include, but are not limited to:
job restructuring;
part-time or modified work schedules;
reassignment to a vacant position;
acquisition or modification of equipment or devices;
appropriate adjustment or modifications of examinations, training materials or policies;
provision of qualified readers or interpreters;
leaves of absence;
making the workplace accessible for wheelchair users; and
providing a reader or interpreter for someone who is blind or hearing impaired.
Undue Hardship
An employer doesn’t have to provide an accommodation if doing so would cause undue hardship to the employer. Undue hardship does not exist merely because the requested accommodation would provide some cost to the employer. Rather, undue hardship exists where the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer is not required, however, to provide the exact accommodation requested.
Inquiries Regarding Disability of Job Applicant or Employee
Generally, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer, nor may it ask job applicants if they have a disability or about the nature of an obvious disability. An employer may, however, ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation. After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.
As for existing employees, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.