The Massachusetts disability discrimination statute parallels the Americans with Disabilities Act (ADA) in many respects, with some key differences. Mainly, the Massachusetts disability discrimination law covers a broader range of employers because of its lower threshold requirements. As both state and federal laws apply to employers, this chapter describes the key provisions of the ADA, and notes areas where Massachusetts law differs from the federal standards.
Signed into law on July 26, 1990, the ADA is the most comprehensive federal civil rights statute to protect the rights of people with disabilities. The ADA is divided into five titles, each addressing a unique area, including:
In response to several Supreme Court decisions that limited the ability of disabled persons to recover in discrimination lawsuits under the ADA, Congress passed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which broadened the definition of “disability” and made it easier for an employee to establish a claim.
The Americans with Disabilities Act (ADA) applies to private employers with 15 or more employees, including part-time employees. In contrast, Massachusetts disability discrimination law applies to private employers with six or more employees. Both laws also apply to public employers, labor organizations, and employment agencies.
It is important to note that employers with 15 or more employees can be held liable under either law. An employee who sues his or her employer may choose to file an ADA claim in federal court, rather than a state law claim. In some respects, the ADA makes it easier for an employee to establish a claim, which means that many employees opt for it over state law.
Under Massachusetts law, the employee must specifically convey to the employer both:
Federal law is far more flexible, requiring only that the employee raise the issue.
The ADA does not cover the following entities:
Massachusetts law does not cover exclusively:
Both federal and Massachusetts laws require employers to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment opportunities available to non-disabled individuals. Specifically, the laws prohibit employers from discriminating against persons with disabilities who are able to perform the essential functions of a job (that is, the key job duties), either with or without reasonable accommodation (assistance from the employer).
This protection extends to all areas of the employment relationship, including:
Disability law only protects an employee who is a qualified individual with a disability.
A “qualified individual with a disability” is a person who:
Each of these requirements for protection will be discussed later in this chapter.
The laws also protect individuals who have a relationship with a person who has a disability. Therefore, an employer may not discriminate against an employee based on its knowledge that the employee is associated with a person with a disability. This topic is discussed further in, Relationship with an individual with a disability.
Neither federal nor state law provides a comprehensive list of diseases and conditions that the law recognizes as disabilities. The court assesses whether an individual has a disability on a case-by-case basis.
Under both laws, an individual with a disability is a person who meets at least one of the following requirements:
The first step to determine whether an individual has a physical or mental impairment that substantially limits one or more major life activities is to understand how the law defines “impairment.” Federal and state laws define impairment similarly, though federal law is more specific. The ADA defines the term impairment as any:
affecting one or more of the body's multiple systems, including:
Similarly, Massachusetts law defines an impairment as either:
Both federal and state law include mental or psychological disorders in the definition of disability.
The second step to determine whether an individual meets the standard is to determine whether the impairment substantially limits that individual. Under both federal and state laws, an impairment substantially limits an individual if it prevents or severely restricts an individual’s ability to perform a major life activity.
Generally, the name of an impairment or a condition does not determine whether a person is protected by the disability law – rather, courts assess the effect of an impairment or condition on the life of a particular person. Some impairments, such as blindness and deafness, are by their nature substantially limiting, but many other impairments may be disabling for some individuals but not for others. For instance, although cerebral palsy often significantly restricts major life activities such as speaking, walking and performing manual tasks, some individuals with very mild cerebral palsy may experience only slight interference with speaking. Therefore, the determination focuses on the extent to which the disability limits a major life activity.
Under the ADA, modified by the ADAAA, major life activities generally include either:
The inability to perform a specific job is not a disability – rather, the employee must be limited with regard to a major life activity.
Generally, both federal and state laws require that the court determine the existence of an impairment without regard to whether its effects may be lessened by measures such as medication, auxiliary aids, assistive technology, or prosthetic devices.
Federal law carves out one exception to the mitigating measure rule – the court should consider the bettering effects of the mitigating measures of ordinary eyeglasses or contact lenses in determining whether a visual impairment substantially limits a major life activity.
Even if an employee does not have a current impairment that should be classified as a disability, an employee may nevertheless succeed in a claim under the ADA and Massachusetts law if he or she has a record of such an impairment. Persons who have a history of a physical or mental impairment that substantially limits one or more major life activities fall under this type of protection.
When an employer perceives an individual as having a disability based on stereotypes, fears, or misconceptions about the disability, the individual is covered by the ADA and Massachusetts law. This issue arises when an employer makes decisions about an individual’s employment based on unsubstantiated concerns about:
Under the ADAAA, an individual is “regarded as” disabled if the individual establishes that the employer subjected him or her to an action prohibited under the statute (such as termination or failure to hire) because of an actual or perceived impairment.
If an employer makes an adverse employment decision based on unfounded beliefs or fears that a person’s perceived disability will cause problems in areas such as those listed above, and cannot show a legitimate, nondiscriminatory reason for the action, that action would be discriminatory.
Cases are just starting to emerge by employees claiming discrimination on the basis of having COVID-19. All three prongs of the definition of disability might be at play. An employee who has a current diagnosis of COVID-19 may not have symptoms and may not be limited in any major life activity; however, the same employee may be considered disabled if the employer regards the person as disabled based upon the employee’s condition or history of having had COVID-19 or its symptoms. Aggressive efforts by employers to keep COVID-19 out of their workplaces may therefore expose them to claims of disability discrimination. Both Human Resource managers and direct supervisors need to be sensitive to the risks of liability that their reaction to the situation may create. They should be guided by the science and the recommendations of the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC) in how they respond to this situation. The ADA, the Rehabilitation Act and the PHRA continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety. Useful sources of information are:
Long COVID is defined as: “a wide range of new, returning or ongoing health problems people can experience four or more weeks after first being infected with the virus that causes COVID-19.” Like the symptoms of COVID-19, the symptoms of Long COVID are not predictable or uniform. The following are some common symptoms of Long COVID:
Individuals with Long COVID are entitled to disability-based protections if the symptoms manifest in such a way so as to substantially limit at least one major life activity. Long COVID does not always reach the level of a disability under the ADA and each individual case should be assessed on its own in terms of meeting requests for reasonable accommodations.
To be covered by the Americans with Disabilities Act (ADA) or Massachusetts law, the employee must be a qualified individual. A qualified disabled person is one who can perform the essential functions of a job with or without accommodation. The law does not require an employer to hire, promote, or retain a disabled person who cannot perform the functions of the job.
The “essential functions” of a job are those functions that must be performed by an employee in order to accomplish the principal objectives of the job.
An employer should consider the following factors to determine whether a function is essential:
The law recognizes that the employer determines what functions of a job are essential. When an employer prepares a written job description, it is helpful evidence of the essential functions of the job. The MCAD or EEOC may also consider:
There are two basic steps to determine whether an individual is “qualified” under the ADA:
Job descriptions help identify essential job functions. Although neither federal nor state law requires employers to put job descriptions in writing, written job descriptions help employers set forth educational, experience, skill, licensure, and other requirements needed to perform a particular job. Written job descriptions also help employers establish legitimate qualitative and quantitative production standards related to the essential job functions. Finally, written job descriptions also aid employers in determining whether a particular individual is qualified to perform a particular position. In short, a well-crafted, written job description can be the best evidence if a company has to defend against a charge of disability discrimination. See, Job descriptions in Recruiting and hiring.
An employer must provide reasonable accommodations to its disabled employees who are qualified to perform the essential functions of a job. A reasonable accommodation is an adjustment to a job or the work environment that enables a disabled individual to enjoy equal employment opportunity.
An employer must consider reasonable accommodations in at least three situations:
Employers are only required to accommodate known disabilities, and it is the responsibility of the individual with the disability to make the need for an accommodation known to the employer. The law does not require the employee to specifically name the ADA or identify the accommodation. As the EEOC guidelines explain, few applicants or employees walk into an employer’s office and state “I need a reasonable accommodation under the ADA.” Most individuals present an employer with a set of facts that may indirectly support the need for an accommodation. An employee could tell a supervisor, “I am having trouble getting to work on time because of the medication I am taking;” or an employee’s doctor may send a note indicating that the employee cannot lift more than 50 pounds.
Once an individual raises the need for an accommodation, the employer must interact with the employee to determine a reasonable accommodation based on the facts and circumstances. Generally, an employer must accommodate the employee’s disability, unless at least one of the following details about the accommodation are true:
Where a disability or the need for an accommodation is not obvious, employers may ask for reasonable documentation of the disability. The employer may require documents from an appropriate healthcare provider or rehabilitation professional. An employer should limit its inquiry to only information related to the relevant disability, and should avoid inquiry into the employee’s medical history or other unrelated information.
An employer may also choose to discuss with the individual the nature of the disability and the need for further information. The employee may be able to explain any functional limitations to the employer that are not obvious. Finally, an employer may arrange for the individual to see a health care or rehabilitation specialist (at the employer’s expense) to determine the nature of the disability. If the need for an accommodation is not obvious and the individual refuses to provide reasonable documentation or information, she or he is not entitled to a reasonable accommodation.
An employer should analyze each request for an accommodation on a case-by-case basis. An employer must always consider two factors to determine a reasonable accommodation:
Specific reasonable accommodations may include, but are not limited to:
Both the employer and the employee should be involved in the interactive process of identifying the possible accommodations. An employer should consider:
The law does not require the employer to provide the best accommodation or the one requested by the employee. Rather, the accommodation need only be sufficient to meet the job-related needs of the employee seeking accommodation.
Massachusetts employers may be required to accommodate an employee's lawful medical marijuana use, if that use is in connection with a disability, and if doing so does not impose an undue hardship on the employer. [See Barbuto v. Advantage Sales and Marketing, LLC or Mass. G.L. c. 94G, § 7, the Act for the Humanitarian Medical Use of Marijuana.] Accordingly, a Massachusetts employer who learns that an employee is lawfully using medical marijuana should determine whether the employee's use is in connection with a disability; and if it is, the employer should engage the employee in an interactive process in order to determine whether it can reasonably accommodate the employee's medical marijuana use.
During the process of determining a reasonable accommodation, the employer should record all attempts it makes to accommodate a disabled employee.
Employers should accommodate a current employee by reassignment to a different job only when the employee cannot be accommodated in his or her present position. If the employer does reassign an employee with a disability, the employer need only reassign the employee to an available position. The law does not require the employer to remove another qualified employee from his or her position or to create a new position to reasonably accommodate an employee.
Sometimes the ADA reasonable accommodation obligation conflicts with other obligations mandated in collective bargaining agreements. In unionized employment settings, governed by a collective bargaining agreement, where job assignments and other conditions of employment are based on seniority, the U.S. Supreme Court has ruled that a requested accommodation that conflicts with a seniority system is not a “reasonable accommodation.” In other words, a disabled employee with less seniority, who seeks reassignment to an available position cannot usurp a non-disabled employee with greater seniority who has already applied for that position. Additionally, the U.S. Supreme Court ruled that established seniority systems trump the reasonable accommodation obligation regardless of whether employees are represented by unions and covered by labor contracts. However, if the employer routinely makes exceptions to the seniority system, a court may find that it could make an exception to accommodate a disabled employee.
Neither federal nor state law requires an employer to provide a reasonable accommodation to a disabled employee when the proposed accommodation would create an undue hardship on the employer. An undue hardship is an action that would create significant difficulty or expense to an employer or would fundamentally alter the nature or operation of the company.
In determining whether an accommodation would create an undue hardship on an employer, the employer should consider the following factors:
In contrast, the employer should not consider the following factors to determine whether the accommodation would cause an undue hardship on the employer:
An employer may also deny accommodation to an individual normally protected under the ADA where an individual poses a “direct threat” to the health and safety of others in the workplace. The U.S. Supreme Court has ruled that an employer may consider not only the health and safety of other employees, but also the health and safety of the employee requesting reasonable accommodation. The direct threat defense only applies when no reasonable accommodation would eliminate or reduce the risk to an acceptable level.
The EEOC defines a direct threat as a significant risk of substantial harm.
In determining whether a direct threat exists, the employer should consider:
These factors must be based on objective, factual evidence and cannot be founded on subjective fears or stereotypes regarding the nature or effect of a particular disability. For instance, if an employer assumes that an employee with a mental disorder must be violent and refuses an accommodation on that basis, the employer is in violation of the ADA.
Sometimes an employer must provide a light- or restricted-duty position for an employee with a disability. The ADA does not require the creation of a light-duty position for a disabled individual or injured employee, unless the heavier duties of the job are marginal functions that are not essential to the job. However, the employer may be obligated to create a light-duty accommodation to a disabled employee if the employer has created light-duty positions in the past. Furthermore, the ADA prevents employers from eliminating long-standing light-duty positions when a disabled employee fills the position.
Before providing a disabled employee with a light-duty position, the employer should first determine whether the light-duty position will be permanent or temporary. If the position is temporary, the employer should decide how long it will last, and should regularly assess if the light-duty assignment continues to be necessary or appropriate. This is because an employer may lose the ability to eliminate the temporary position if the disabled employee performs duties in that position for a long period of time.
Once an employer places a disabled employee in a permanent light-duty position, the employee’s ability to perform the essential functions of the job must be measured in relationship to the light-duty position and not to the previous position. Therefore, the employer cannot terminate an employee because the employee is unable to perform the essential functions of his or her previous position if the employee is able to fulfill the essential job functions of the light-duty position.
The Americans with Disabilities Act (ADA) and Massachusetts law specifically state that an employer may not deny an employment opportunity or benefit to an individual, whether or not that individual is disabled, because that individual has a known relationship or association with an individual who has a disability.
The term “relationship or association” refers to family relationships and any other social or business relationship or association. Therefore, this provision of the law prohibits employers from making employment decisions based on concerns about the disability of a family member of an applicant or employee, or anyone else with whom this person has a relationship or association.
This provision generally arises in three situations:
This provision of the law prohibits discrimination in employment decisions concerning an individual because of a known relationship or association with an individual who has a disability. However, the law does not require an employer to provide a reasonable accommodation to a non-disabled individual because that person has a relationship or association with a disabled individual. The obligation to make a reasonable accommodation applies only to qualified individuals with disabilities. These individuals may, however, have rights to accommodation under other federal laws such as the Family and Medical Leave Act (FMLA).
The law does not recognize certain impairments and conditions as disabilities. These include:
Generally, complication-free pregnancy is not a disability under the ADA or Massachusetts law. If, however, a pregnancy causes the employee to be substantially limited in a major life activity (such as walking or standing), she may be considered disabled as a matter of law.
The ADA prohibits an employer from requiring a medical examination before the employer extends an offer to an employee. For more information on ADA laws affecting the pre-offer stage of the hiring process, please refer to Recruiting and hiring.
An employer may request a medical examination after it extends an offer of employment, or may condition its offer on an applicant’s successful completion of an examination. The EEOC has defined a medical examination as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” In contrast, the employer should remember that medical examinations of current employees must be job-related and consistent with business necessity. If disability-related inquiries made during a post-offer medical examination yield information about an applicant’s disability, and an employer withdraws a conditional offer of employment based on that information, the decision must be job-related and consistent with business necessity.
Even though an employer may require a physical agility test or a physical fitness test before an offer is extended to an applicant, an employer may not measure an applicant’s physical or biological responses to any such test at the pre-offer stage. An employer could measure how much an employee can lift or how fast he or she can run at the pre-offer stage. However, the employer may not measure an applicant’s blood pressure or heart-rate after performing the task.
Depending on whether the tests are intended to or actually do determine medical or biological data, psychological examinations may or may not be considered medical examinations under the ADA. A test that measures whether an applicant has a compulsive disorder or depression is considered an unlawful medical examination under the ADA. However, a test that measures an applicant’s emotional and cognitive skills may be permissible.
If an employer chooses to administer a pre-employment test, it must provide reasonable accommodations if an applicant requests accommodation or if the employer has reason to believe one is necessary. Under the ADA, employers must give applicants or employees with impaired sensory, manual, or speaking skills tests that do not require the individual to use that impaired skill. For instance, employers must give oral, rather than written, tests to individuals with dyslexia. Individuals with impaired vision may require a large print, Braille, or a sign language accommodation. However, if the employer measures a skill necessary to perform an essential job function of the position, the law does not require the employer to provide an applicant with an alternative method of testing. For instance, if reading is an essential job function, the ADA does not require the employer to provide an oral test format.
If the need for accommodation is not obvious, the employer may ask an applicant for documentation from a professional regarding the applicant’s disability, the limitations that accompany that disability, and the need for accommodation for testing purposes. Because employers may only request information necessary for accommodation during testing, it is important that employers specify to the applicant that it is only requesting the information to verify the existence of the disability and the need for accommodation.
Although the ADA permits an employer to test for illegal drug use, Massachusetts law limits the circumstances under which an employer may require such a test. See Recruiting and hiring.
Alcohol tests and tests for legal prescription drugs are considered unlawful medical examinations under ADA. Therefore, an employer should never screen applicants before an offer with this type of test.
Employers must keep the confidential medical information of employees and applicants separate from their respective personnel records.
Moreover, employers may only reveal medical information, in limited situations, to the degree necessary for:
While the ADA prohibits employers from discriminating on the basis of disability when employers provide healthcare benefits to their employees, the ADA shields certain health benefit plans from inspection. The determination of whether a health benefit plan is lawful under the ADA involves a two-step analysis.
The first issue is whether the employer’s health benefit plan includes a “disability-based distinction.” A disability-based distinction is a provision in a health benefit plan that singles out a particular disability from coverage. The ADA has indicated the following benefit distinctions are not disability-based and are, therefore, lawful under the ADA:
If the health benefit plan includes a disability-based distinction, the employer may validate it by showing that the distinction is “bona-fide,” such as by demonstrating full compliance with Employee Retirement Income Security Act (ERISA) reporting and disclosure requirements in developing the benefit plan.
Not only must the employer show that the plan is “bona-fide,” the employer must also demonstrate that the disability-based distinction is not a “subterfuge” to avoid the ADA. An employer shows that a health benefit plan is not a subterfuge by demonstrating that the provision is necessary to keep any unacceptable or drastic change from occurring, either in the health benefit plan’s coverage or in the premium charges for the plan.
Under the Americans with Disabilities Act (ADA), alcoholism and past drug addiction are protected as disabilities. An alcoholic who is otherwise qualified to perform the essential functions of the job with or without accommodation is, therefore, protected by law. An employer may, however, hold an employee who is an alcoholic to the same qualification standards for employment or job performance and behavior as other employees, even if any unsatisfactory performance or behavior is related to the alcoholism. Additionally, an employer may prohibit the use of alcohol on the job.
An employer may not discriminate against a drug addict who is not currently using drugs or who has undergone rehabilitation because of a history of drug addiction. The ADA includes in this provision a qualified individual who meets one or more of the following requirements:
While the ADA protects recovering addicts, the definition of a “qualified individual with a disability” does not include an individual who “is currently engaging in the illegal use of drugs.”
The ADA requires the Department of Health and Human Services to prepare an annual list of infectious and communicable diseases that are transmitted through food handling. In situations where an individual with a disability has a disease on the list and has either applied for or works in a food handling position, the employer must be sensitive to both the health concerns of others and the needs of the disabled individual. To do this, the employer must determine whether there is a reasonable accommodation that will eliminate the risk of transmitting the disease. If there is no reasonable accommodation, the employer may refuse to assign the individual to a position involving food handling. If the individual is a current employee, the employer should consider reassigning the employee to a vacant position that does not involve food handling.