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Disabilities and Employment Rights
Q. What laws protect the employment rights of people with disabilities?
A. There are federal and state laws that protect people with disabilities against discrimination in terms, conditions or privileges of employment: the federal Americans with Disabilities Act (ADA), 42 USC sec. 1201 et seq., amended in 2008 by the Americans with Disabilities Act Amendments Act (ADAAA), 42 USC Sec. 12101, et seq., and Oregon´s disability law, amended in 2009 to be consistent with federal law in most respects, ORS 659A.103, et. seq.
 
Q. Must all employers comply with these laws?
A. Employers of 15 or more employees must comply with the federal employment protections for people with disabilities, and employers with 6 or more employees must comply with Oregon’s disability law. Employers covered by both state and federal laws (all those with 15 or more employees) must apply the standard most beneficial to the employee.
 
Q. How do state and federal laws define a "person with a disability"?
A. Both federal and state laws define a person with a disability as an individual who has a physical or mental impairment that substantially limits one or more major life activities. Those laws also protect those who have a record of such an impairment, and those who are regarded (“perceived”) as having such an impairment.
 
Q. What are major life activities?
A. Federal and state statutes contain a long, non-exhaustive list of major life activities including self-care, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, thinking, communicating, working, interacting with others, and the operation of major bodily functions including but not limited to the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
The impairment or perceived impairment is one that restricts one or more major life activities of the individual as compared to most people in the general population. For example, most people can walk three blocks with little difficulty. An inability to do so could be considered a disability. In contrast, the average person cannot walk ten miles without growing fatigued. The inability to perform this activity would not constitute a disability.
 
Q. Are temporary conditions considered disabilities?
A. Maybe. The law has changed substantially in this regard since 2008. Under current law, the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting, and therefore a disability.
 
Q. Are alcoholism or drug addiction considered disabilities?
A. Alcoholism is considered a disability under state and federal law. Current use of illegal drugs is not considered a disability, and a company policy may prohibit employees from consuming or having alcohol or illegal drugs on company premises, or from coming to work impaired by alcohol or illegal drugs. However, employees undergoing treatment for drug addiction are protected under both state and federal law.
 
Q. Which conditions are excluded from the definition of "disability?"
A. Conditions that are not considered disabilities include transvestitism, pedophilia, exhibitionism, voyeurism or other sexual behavior disorders, compulsive gambling, kleptomania and pyromania. Neither federal nor state laws consider homosexuality or bisexuality a disability.
 
Q. Do the ADA and state disability laws require an employer to hire or place a person with a disability in a position?
A. No. The ADAAA and state disability laws prohibit discrimination in hiring and placement against persons with disabilities who are qualified and who can perform the essential functions of a job with or without reasonable accommodation. The employer must accommodate such individuals if such accommodation would not create an undue hardship or result in a direct threat to the employee or others.
 
Q. What does "qualified" mean?
A. It means that the individual, with or without a reasonable accommodation, can perform the essential functions of the position. Due consideration is given to the employer’s determination as to the essential functions of a position, and a written position description will be considered evidence of the job’s essential functions.
 
Q. How do you define "essential functions"?
A. Essential functions are those that are fundamental to accomplishing the job. Considerations in determining essential functions include: the time it takes to perform the function, the consequences of not performing the function, whether the position exists to perform that function, and whether there are other employees that can perform the function.
 
Q. How is "reasonable accommodation" defined?
A. Reasonable accommodation is a modification or adjustment that enables a person with a disability to apply for a job (i.e., holding a job interview in an accessible location); to perform the essential functions of a position (i.e., purchasing an amplifier to allow a hearing-impaired person to talk on the telephone); or to enjoy the same benefits and privileges of employment as other employees (i.e., holding a company function in a location accessible to all employees).
 
Q. How does an employer know if an employee needs reasonable accommodation?
A. Since an employer may not ask medically related questions of an applicant, the employer may not discuss reasonable accommodation unless the applicant initiates the discussion. Once a person is hired, if the need for accommodation is obvious (for example, the individual uses a wheelchair), the employer may ask what accommodations the person will need. After the point of hire, if the disability is not obvious to the employer, the burden is on the employee to tell the employer about the disability and the need for accommodation. Once alerted of a disability, the employer should begin an interactive process with the employee to learn what accommodation, if any, the employee needs. With this information, the employer can decide if and how the accommodation can be provided. Further information for employers on navigating the requirements of the disability laws can be found at the following websites: www.askjan.org and www.nwadacenter.org.
 
Q. When does reasonable accommodation become unreasonable?
A. It becomes unreasonable if it would cause the employer an undue hardship. An undue hardship is an action that is significantly difficult or expensive in relation to the size of the employer, the resources available and the nature of the business. Undue hardship is not a bright-line test. An employer that refuses an accommodation based on undue hardship should be prepared to prove that the accommodation would in fact create an undue hardship.
 
Q. Are there limitations on the questions an employer may ask an applicant?
A. Yes. An employer may not ask if an applicant has a disability or inquire about the nature or severity of a disability. Employers may be liable if they ask questions that would elicit information about a disability (i.e., "How many times have you been sick in the last year?") Employers should focus inquiries on an applicant´s ability to perform job-related functions. Best practices include showing an applicant a copy of the position description and asking whether the applicant can perform the essential functions of the job with or without a reasonable accommodation This question can be answered “yes” or “no” and does not solicit medical information.  
 
Q. May employers require an applicant to take a medical examination?
A. No. An employer cannot require a medical examination until after a job offer has been made. However, an employer may condition a job offer on the results of a post-offer medical examination if the employer requires all entering employees in the same job category to take the examination.
 
Q. If an employee asks for reasonable accommodation, may an employer require medical verification of the disability?
A. Yes. Upon receiving a request for reasonable accommodation, an employer may request additional information, including medical verification of the condition requiring accommodation.
 
Q. Should medical information be kept in an employee´s personnel file?
A. No. All medical information should be collected on separate forms and maintained in separate files and treated as confidential records. Such records should be kept under lock and key in the office of human resources, if there is one, separate from any supervisory files. If these records are stored electronically they should be encrypted. These records should only be shared with those who have a legitimate business reason to have the information. Front line managers and supervisors may need information about an accommodation but should not be provided with the intimate details of the employee’s medical condition or diagnosis. Safety personnel may need to know of employees with mobility issues to assist them in case of the need to evacuate the premises.
Revised June 2017

 

DISCLAIMER 
Nothing on this website is intended as legal advice.  Any responses to specific questions are based on the facts as we understand them, and not intended to apply to any other situations.  This communication is not an agency order.  If you need legal advice, please consult an attorney.  We attempt to update the information on this website as soon as practicable following changes or developments in the laws and rules affecting Oregon employers, but we make no warranties or representations, express or implied, about whether the information provided is current.  We urge you to check the applicable statutes and administrative rules yourself and to consult with legal counsel prior to taking action that may invoke employee rights or employer responsibilities or omitting to act when required by law to act.
 
TECHNICAL ASSISTANCE FOR EMPLOYERS
800 NE OREGON STREET, STE 1045
PORTLAND, OR  97232
971-673-0824
 
 
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