Disabled employees and potential employees may be entitled to certain protections including reasonable accommodation and a prohibition on discrimination under Oregon’s disability laws and or the federal Americans with Disabilities Act of 1990 (ADA).  It is critical to understand employee rights in order to avoid liability.

Which Employers are Covered?

The federal ADA applies to employers with 15 or more employees during at least 20 weeks for the current or preceding year.  However, the Oregon disability laws reach employers with as few as 6 employees. 

The employee count includes all employees whether full-time, seasonal, or part-time.  Once you meet the requisite number of employees, you may still be held to its provisions for an additional year even if you drop below the threshold.

Who Qualifies for Protection?

Both the federal ADA and Oregon disability laws extend protections to employees and potential employees of a covered employer who are:

• Disabled;
• Have a record of a disability; or
• Are perceived as having a disability.

What is a disability?

A disability is a physical or mental impairment that substantially limits a major life activity.  In other words, if an impairment makes basic life activities such as caring for oneself, eating, walking, or working more difficult, impossible, or take longer than the average person, then the person is disabled.

Who is qualified?

Whether a disabled employee or prospective employee is qualified requires a two-part analysis. 

The first question is whether the individual has the “requisite skill, experience, education and other job requirements.”   Here the employer should consider the individual’s training, licenses, interpersonal skills, and judgment.

The second question is whether the individual is capable of performing the essential functions of the job with or without a reasonable accommodation.  Note that the individual need not be capable of performing all functions, just the essential functions of the position.  Some things to consider in defining essential functions are: the purpose of the position, the number of available employees, the degree of specialization required to perform a function, and the employer’s own judgment.

What Protections are Extended?

The disability laws prohibit not only discrimination based on an individual’s disability, but also require an affirmative duty to reasonably accommodate the individual.

Discrimination

Discrimination means an employer must treat a qualified individual with a disability the same way it would treat a qualified individual without a disability.  Furthermore, the prohibition on discrimination extends to the entire relationship from initial application and hiring to final termination.

Similarly, harassment and retaliation for invoking one’s rights under the disability laws are also prohibited.

Reasonable Accommodation

Once an employee requests an accommodation, the employer is then obligated to engage in an interactive process to discover whether a reasonable accommodation exists and is available.  However, the duty may arise absent an express request if the employer is aware of the employee’s disability and his/her need for an accommodation. 

The purpose of the interactive process is to identify and employ appropriate reasonable accommodations.  Examples of accommodations include, unpaid leave, flex time, temporary reassignment, temporary work modification, or other assistance from another employee.

When is an Accommodation Unreasonable?

Although an employee may be entitled to a reasonable accommodation, a reasonable accommodation may not be available.

Things to consider in how reasonable a potential accommodation is, include:

• Cost (in relation to the employer’s budget, not the employee’s salary);
• Number of other available employees;
• Effect on expenses and resources; and
• Impact on the operation, other employees’ ability to perform, or the facility’s ability to conduct business.

Note on Medical Exams and Inquiries

During the hiring process, while it is entirely appropriate for an employer to inquire as to a potential employee’s ability to perform the position in question and his/her qualifications, it violates the individual’s rights under disability law to inquire whether he/she is disabled.  However, once a job offer has been made, an employer may require the potential employee to submit to a medical exam if it is required of all potential employees.

In addition, the employer must maintain any medical files separate from personnel files and under lock and key.

In conclusion, the law with respect to disabilities in employment is very fact-sensitive and employers are wise to err on the side of caution.  In other words, be sensible, sensitive, and smart in handling your employee’s accommodation requests.