Q. How do I determine if an employee has a disability?
This determination must be made on a case-by-case basis. In some cases, the disability may be obvious, such as a person who uses a wheelchair. In most cases, the employee will need to inform you of the disability, either verbally or through doctor’s notes. Remember that the definition of disability includes a person who is regarded by his or her employer as being disabled. If the person is not actually a person with a disability, but the employer regards them as having a disability, they are protected from discrimination under the law. In reasonable accommodation situations, the employee must self-identify as a person with a disability, and make the request.
Q. Does the law cover harassment by co-workers?
Court cases have determined that harassment in the workplace against a person with a disability, because of the disability, is prohibited. If the harassment is offensive and unwelcome, is serious enough to affect the person’s work or create a hostile working environment, is because of the disability, and if the employer knew of the harassment or should have known of the harassment and took no or ineffective action to stop it, then an employer is in violation of the law.
Q. What disabilities need to be reasonably accommodated?
An employer must make reasonable accommodation for an impairment that substantially limits an employee’s ability to do his or her job, to be considered for a job, or to have access to equal terms and conditions of the job. An employer must also make reasonable accommodation for a condition that will likely result in a substantially limiting impairment if the condition is not reasonably accommodated. The 2007 legislation states:
(d) Only for the purposes of qualifying for reasonable accommodation in employment, an impairment must be known or shown through an interactive process to exist in fact and:
(i) The impairment must have a substantially limiting effect upon the individual's ability to perform his or her job, the individual's ability to apply or be considered for a job, or the individual's access to equal benefits, privileges, or terms or conditions of employment; or
(ii) The employee must have put the employer on notice of the existence of an impairment, and medical documentation must establish a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect.
(e) For purposes of (d) of this subsection, a limitation is not substantial if it has only a trivial effect.
Generally, disabilities that are perceived only do not need to be accommodated.
Q. What do I need to do when an employee asks for a reasonable accommodation?
The procedure for reasonable accommodations has remained the same through the rest of the changes in disability law. In most cases, the person needing the accommodation must request it. This can be verbal, in writing, or in the form of a doctor’s note. The employer and employee must then enter into an interactive process, which involves both parties discussing the request and possible accommodations. The employer can request additional information from the employee’s doctor or request that the employee get a physical capacities examination.
Q. Does an employer need to implement the reasonable accommodation that the employee requests?
Not necessarily. The employer can implement a reasonable accommodation of its own choosing, as long as there is an interactive process and the reasonable accommodation works for the employee and is effective.
Q. What are possible reasonable accommodations?
Think creatively, and work together with the employee to come up with a solution that works for both of you. A reasonable accommodation makes it possible for the person with a disability to do his or her job. The reasonable accommodation can be a schedule change, computer hardware or software, ergonomic furniture, alternate break times, allowing the employee to wear a brace, a stool to sit on, and more. If there is no solution that allows the employee to work at his or her current job, the employee must be put into an open position for which they are qualified. If there are no such positions, a medical leave might be a necessary accommodation.
Q. What is not considered to be a reasonable accommodation?
Anything that creates an undue hardship for the employer is not considered to be reasonable. An undue hardship may be created when the requested accommodation is too costly, or will fundamentally alter the nature of the business. An undue hardship is determined on a case-by-case basis, in looking at the size and resources of the employer. The employer must demonstrate that the accommodation is an undue hardship. In addition, an employer does not need to accommodate the employee by lowering production standards, hiring an extra person to help the employee, or removing essential job functions.
Q. What are essential job functions?
The essential job functions are the main tasks or duties of a particular position. These functions are determined by how often they are done, or how fundamental they are to the position. This does not include job duties that are peripheral to the main function or only done once in a while. Often, a written job description will outline what the essential job functions are, but the person in the position will still have to engage in those duties on a regular basis in order for the duty to be considered essential.
Q. Who can prescribe work restrictions for an employee?
Anyone who is licensed as a health care provider in Washington can prescribe work restrictions, as long as their area of practice aligns with the particular medical condition at issue (for example, it would probably be questionable when a podiatrist writes restrictions regarding a patient’s heart condition).
Q. Am I required to hire a certain number of persons with a disability?
No, there is no requirement to hire a certain number of persons with a disability. However, if a person is qualified to do the job, with or without a reasonable accommodation, and happens to have a disability, they must be considered for the position, and hired if they meet the merit criteria for the job. In employment situations, civil rights laws only prohibit use of protected criteria to make hiring and other employment-related decisions; that is to say, disability, race, color, national origin, sex, creed, age, HIV, AIDS, Hepatitis C, maternity and pregnancy, and, as of July 21, 2007, veterans and military status.
Q. Can an employer hire a person of a particular protected class, such as a woman or a man, for a particular job?
Bona Fide Occupational Qualifications (BFOQs) can be requested from the Washington State Human Rights Commission. The WSHRC will evaluate the requests and grant or deny them. In the past, some have been granted on the basis of sex, primarily for correctional and drug testing positions. It would be unlikely that a BFOQ request for a non-disabled person would be granted.
Q. Can I ask about an employee’s medical condition during an interview or on an application?
You cannot ask about an employee’s medical condition during the hiring process. This includes questions about medications, past medical history, or past workers compensation claims. You may ask if the employee is able to perform the essential functions of the job with or without accommodations.
Q. Can an employer require a physical examination as part of a job application?
An employer can require that an applicant take a physical examination as part of a hiring process if the physical exam takes place after a conditional offer of employment. The employer must follow the same procedure and give the same physical examination to all conditional employees in a particular position.
Q. Can I ask about an employee’s medical condition after they are employed?
Generally, it is not permissible to ask questions about an employee’s medical condition. You want to avoid the appearance of regarding the employee as disabled. An employer can ask about medical issues if there is a change in work performance, and if the questions are related to the person’s ability to do the job. An employer can ask about medical information as part of the interactive process in a reasonable accommodation situation.
Q. Do I need to allow a service animal at work?
If the animal provides a disability-related service to a person with a disability, you need to allow the service animal in the workplace. These animals are not pets, so a “no pets” policy does not apply. You can refuse to allow the service animal only if the animal poses an immediate or reasonably foreseeable risk or danger to people or property. Speculation that the animal poses a risk or danger is not enough to refuse the animal. A service animal must be trained, and owners can train their own service animals. Service animals should be under the control of their owners. Service animals should not create sanitary problems or make loud noises. There are certain very specific types of medical and food service operations where certain animals can be excluded under certain circumstances. There is no requirement that the employer provide food, water, or toileting facilities for service animals. There is further information in the Washington Administrative Code (WAC) 162-22-100.
Q. When can I terminate the employment of an employee with a disability?
If the employee is unable to complete the essential functions of his or her job with or without reasonable accommodation, there are no other open jobs for which the employee is qualified, and time spent on medical leave will not alleviate the medical condition, then you may separate the employee, as you would any other employee. You may also apply workplace rules and regulations regarding production and behavior to employees with disabilities, as long as you consistently apply the same rules to all employees. However, be aware that a few courts have held that if the person’s disability is causing a particular behavior that violates a workplace rule, and the behavior and the disability are linked, then the employee cannot be terminated for the behavior. This is a difficult situation to analyze, so consult an attorney for advice, or contact the WSHRC for guidance. No court decision permits an employee to be violent, to harm others, to steal, to be insubordinate, or to refuse to follow a lawful order. For updated information on this issue, please see the WSHRC guidance on Gambini v. Total Renal Care.
Q. Do I have any other obligations to the employee after I let them go?
If you separated the employee because they were no longer able to complete the essential functions of the job due to a disability or medical restrictions, then you have a continuing obligation to inform the employee of job openings for which they are qualified and which meet their medical needs. The Ninth Circuit Court of Appeals has determined that reassignment to an open position constitutes a reasonable accommodation, and that an employer needs to continue to attempt to reassign an employee to another job for a “reasonable” period. This means that it is a good idea for employers to be proactive about informing their former employees of openings, at least for a few months after a disability separation.
Q. What protection does the employer have when an employee is disabled?
The first protection is that the employee has to be able to perform the job duties. If the employee can properly perform the important parts of the job then help needs to be given to the employee. The intent is for the employer to help the employee do the job with or without a change to the work situation. So if this is possible an accommodation to the worker’s job duties is expected.
If the employee has a temporary disability then making short-term changes to the job duties is expected. When the employee is permanently disabled and can no longer perform the job duties the worker may be let go. However, if an open position is available then the disabled worker needs to be considered for this position as long as the job qualifications are met. Helping the worker find another suitable position with the employer applies even for a period of time after the worker leaves employment.
Q. As an employer what do I have to do when an employee asks for a reasonable accommodation?
The most basic answer to this question is to talk with the employee about what exactly is needed. Enter into an interactive process where both parties share information. Asking for information about the requested work changes from the medical provider is a good idea. Making informed decisions about the real situation the employee is encountering is important. Don’t make assumptions about the worker’s medical condition and the ability to get the job done.
Once all of the facts about the situation are found out then making a decision about what is reasonable for your situation is next.
Q. When can a supervisor ask an employee about a medical condition?
Normally questions about an employee’s medical condition should be avoided. But once poor work performance that may be because of a medical condition, becomes apparent asking about conditions that may be impacting the work performance is appropriate.
Q. During a job interview can the applicant be asked about any medical condition?
The general rule here is no. Asking questions about ability to perform the primary functions of the job is always appropriate.
Asking medically related questions is also not a good idea. For example: Questions about previous workers compensation claims is dangerous and can lead to information being revealed that if acted on can cause trouble.
Testing is a good idea, as long as everyone else applying for the same type of job is asked to demonstrate his or her ability.
Q. What does an employer do when an employee asks to bring their dog to work?
If the animal is a trained service animal and assists the employee in getting the job done then the general answer is to allow the animal at work. This should be treated like any other request for a reasonable accommodation. Entering into an interactive dialog is appropriate. Finding out if there are other means of accommodating the employee’s medical condition is always a good idea. Using this information to determine what change will help the employee get the job done is expected.
If the dog is the employee’s pet then the law against discrimination does not apply and the employer should follow its policy about pets at work.
Q. Who can prescribe work restrictions for our employees?
Anyone licensed to practice medicine in Washington can prescribe work restrictions. As long as the medical provider is licensed for the specific medication condition the employee has then they may ask for work restrictions.