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Disabilities and reasonable accommodation — Minnesota

 

Differences between Minnesota law and federal law

The Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA) prohibit discrimination against persons with disabilities and allow those who have been discriminated against to file complaints seeking monetary and injunctive remedies. While the ADA limits liability to employers under the MHRA, an individual supervisor or third party can be held liable for aiding and abetting the employer’s acts of discrimination.

Under the ADA and the MHRA, a person is considered to have a disability if that individual possesses any of the following:

  • a physical or mental impairment that substantially limits one or more of that person’s major life activities
  • a record of such impairment
  • is regarded as having such impairment.

The “regarded as” prong of the ADA was amended as of January 1, 2009, such that an individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that the individual  has been subjected to an action prohibited under the act because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. When assessing whether the impairment substantially limits a person’s major life activities, employers are prohibited from considering the bettering effects of “mitigating measures.” Additionally, the amendment to the ADA vastly expanded the term “major life activity” to include:

Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working or the operation of a major bodily function, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

The substantive provisions of the MHRA have been read to track the obligations under the ADA. By complying with the ADA, Minnesota employers generally comply with Minnesota state law governing disabilities in the workplace (subject to limited exceptions). The following discussion, therefore, provides a broad overview of the key provisions of the ADA.

The ADA is the most comprehensive federal civil rights statute protecting the rights of people with disabilities. When first adopted in 1990, the ADA was estimated by Congress to protect the rights of 43 million Americans with some form of disability. Changes in population and recent amendments to the ADA have boosted this figure significantly.

The ADA is divided into five titles, each addressing a unique area, including:

  1. employment (Title I)
  2. public services (Title II)
  3. public accommodations (Title III)
  4. telecommunications (Title IV)
  5. miscellaneous provisions (Title V).

Coverage

The ADA applies to all private employers with 15 or more employees, including part-time employees. Similarly, the MHRA applies to all employers with 1 or more employees. The ADA also applies to all public employers, labor organizations, and employment agencies. The ADA does not apply to:

  • employers with fewer than 15 employees
  • the executive branch of the federal government
  • private membership clubs
  • churches
  • parochial schools
  • Native-American reservations.

Title I of the ADA requires employers to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment opportunities available to nondisabled individuals. Specifically, the ADA prohibits employers from discriminating against persons with disabilities who are able to perform the essential functions of a job, either with or without a reasonable accommodation. This protection extends to all areas of the employment relationship, including the application process, testing, hiring, training, assignments, evaluations, disciplinary actions, compensation, promotions, leave, benefits, and all other terms, conditions, and privileges of employment. Under the ADA Amendments Act, individuals without a disability may now bring claims that they were subject to discrimination because of the lack of a disability. 

To be protected under the ADA, an employee must be considered a “qualified individual with a disability.” A qualified individual with a disability is a person who meets all three of the following criteria:

  1. has a disability (under one of the three definitions described below)
  1. is qualified for the job
  1. can perform the essential functions of the job either with or without a reasonable accommodation.

Defining "disability"

Given the wide variety of possible disabilities, neither the statute nor the accompanying regulations lists all diseases or conditions that are considered to be disabilities under the ADA. Rather, the definition of what is a disability is analyzed on a case-by-case basis utilizing functional abilities and not just labels or diagnosis codes. As mentioned briefly previously, an individual with a disability is a person who possesses any of the following:

  • a physical or mental impairment that substantially limits one or more major life activities of the individual
  • a record of such impairment
  • is regarded as having such impairment.

Substantially limiting impairments

The first step in determining if an individual has a physical or mental impairment that substantially limits one or more major life activities requires understanding what is considered an “impairment” under the ADA. The EEOC broadly defines the term impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the body’s multiple systems, including:

  • special sense organs
  • neurological
  • musculoskeletal
  • respiratory
  • cardiovascular
  • reproductive
  • digestive
  • genito-urinary
  • hemic
  • lymphatic
  • skin
  • endocrine systems.

The ADA further defines impairment as any mental or psychological disorder, such as:

  • mental retardation
  • organic brain syndrome
  • emotional or mental illness
  • specific learning disabilities.

Because impairment under the ADA is defined as a physiological or mental disorder, simple physical characteristics such as eye or hair color, left-handedness, or height or weight within a normal range are not impairments. Physical conditions that are not the result of a physiological or mental disorder, such as pregnancy or a predisposition to a certain disease, are also not impairments. Similarly, personality traits such as poor judgment, quick temper or irresponsible behavior, are not considered impairments. Additionally, environmental, cultural, or economic disadvantages, such as lack of education or a prison record, are not impairments under the ADA.

After it is established that an individual has an impairment, the second step is to determine whether the impairment substantially limits that individual. An impairment is substantially limiting if it prohibits or significantly restricts an individual’s ability to perform a major life activity as compared to the ability of the average person to perform the same activity. While there is no absolute standard, federal regulations provide three factors to consider in determining whether a person’s impairment substantially limits a major life activity:

  • its nature and severity
  • how long it will last or is expected to last
  • its permanent or long-term impact, or expected impact.

These factors must be considered because, generally, it is not the name of an impairment or a condition that determines whether a person is protected by the ADA, but rather the effect of an impairment or condition on the life of a particular person. Some impairments, such as blindness and deafness, are by nature substantially limiting, but many other impairments may be disabling for some individuals but not for others. For example, although cerebral palsy frequently significantly restricts major life activities such as speaking, walking, and performing manual tasks, an individual with very mild cerebral palsy that only slightly interferes with the individual's ability to speak and has no significant impact on other major life activities is not an individual with a disability under this part of the definition.

An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability. In addition, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. The determination of whether an impairment substantially limits a major life activity is made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies, use of assistive technology, reasonable accommodations or auxiliary aids or services, or learned behavioral or adaptive neurological modifications. On the other hand, the ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses are considered in determining whether an impairment substantially limits a major life activity.

Major life activities generally include performing normal tasks such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The inability to perform a specific job is not a disability, rather the employee must be limited with regard to a major life activity. Therefore, an individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered, but an individual with a minor, non-chronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered.

Example
An individual whose sole job is to type documents develops carpal tunnel syndrome and is no longer able to type, but is not impaired in any other way. Because typing is not a major life activity, the individual is not protected under the ADA. If, however, the individual is impaired from caring for the individual due to carpal tunnel syndrome, then the individual is protected under the ADA, since caring for oneself is a major life activity.
 

A record of such impairment

The ADA also covers persons who have a history of a physical or mental impairment that substantially limits one or more major life activities. This also includes individuals who have been misclassified as having such an impairment. This would cover, for example, a person who has recovered from cancer or mental illness.

Regarded as having such impairment

Whether based on stereotypes, fears, or misconceptions about disability, many people may be perceived as having disabilities, even if they are not actually impaired. Those people are also covered by the ADA definition of disability. In this context, disability applies to decisions based on unsubstantiated concerns about productivity, safety, insurance, liability, attendance, the cost of accommodation, accessibility, workers' compensation costs, or acceptance by co-workers and customers. An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that the individual has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. For example, this provision would protect a qualified individual with a severe facial disfigurement from being denied employment because an employer feared the “negative reactions” of customers or co-workers. An individual may be protected under this part of the definition in any of the following three circumstances:

  1. The individual may have an impairment that is not substantially limiting, but is treated by the employer as having such an impairment.
  1. The individual has an impairment that is substantially limiting because of attitudes of others toward the condition.
  1. The individual may have no impairment at all, but is regarded by an employer as having a substantially limiting 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 under this part of the definition.

Having a relationship or association with someone who has a known disability

The ADA specifically provides 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. There are generally three situations in which this provision arises:

  1. When an employee is discriminated against because the disability of a family member may pose an increased expense to the employer. For instance, an individual may not be denied employment because the individual's spouse is disabled and is covered by the company health plan.
  1. When an individual is considered disabled because of a relationship with a disabled person. For example, if an employee’s spouse or partner is infected with HIV and the employer fears that the employee may also have become infected, the person is considered disabled by association. Likewise, if an employee’s blood relative has a genetic ailment and the employee is likely to develop the disability as well, then the employee is deemed to be disabled by association.
  1. When an employee is distracted or otherwise unable to adequately perform job duties because of another's disability. For instance, if an employee is somewhat inattentive at work because a spouse or child has a disability that requires attention, the employee would be considered to be disabled by association.

This provision of the law prohibits discrimination in employment decisions concerning an individual, whether the individual is or is not disabled, because of a known relationship or association with an individual with a disability. However, an employer is not obligated to provide a reasonable accommodation to a nondisabled individual simply 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 under other federal laws. (See Chapter 17: Family and medical leave.)

COVID-19 and disability status

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

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:

  • fatigue
  • difficulty concentrating
  • shortness of breath
  • headache
  • dizziness on standing
  • heart palpitations
  • chest pain
  • cough
  • joint or muscle pain
  • depression
  • anxiety
  • fever
  • loss of taste or smell.

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.

Conditions that are not disabilities

Certain impairments and conditions are not considered to be disabilities. These include:

  • current illegal drug use (includes the use of illicit drugs such as cocaine and the unlawful use of prescription drugs)
  • temporary conditions, such as broken limbs, sprains, concussions, appendicitis, influenza, and common colds
  • physical characteristics such as height, weight (other than severe obesity), eye color, or hair color that are within normal ranges
  • common personality traits such as poor judgment or quick temper
  • most sexual behavioral disorders
  • homosexuality or bisexuality
    • Note: some local laws prohibit discrimination on the basis of sexual orientation, bisexuality, and transgendered status. See Chapter 12: Discrimination.
  • others problems such as pyromania, kleptomania and compulsive gambling.

The EEOC does not consider complication-free pregnancies to be a disability under the ADA because pregnancy is not the result of a physiological disorder. If, however, a pregnant woman is substantially limited in a major life activity due to her pregnancy, she can be considered to be disabled under the ADA.

Qualified individuals 

The ADA does not limit an employer’s ability to establish or change the content, nature, or functions of a job. It is within the employer’s discretion to establish what a job is and what functions are required to perform it. The ADA simply requires that an individual with a disability who is otherwise qualified for a job must be evaluated in relation to the essential functions of the position in the same manner as nondisabled individuals. The EEOC defines a qualified individual as one who possesses all of the “requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.” There are two basic steps in determining whether an individual is “qualified” under the ADA:

  1. Determine if the individual meets the necessary prerequisites for the job, such as:
    • education
    • skills
    • experience
    • licenses
    • training
    • certificates
    • job-related requirements, such as good judgment or the ability to work well with other people.
  1. Determine if the individual can perform the essential functions of the job, with or without reasonable accommodation. The essential functions of the job generally include those duties that are fundamental to the performance of the job. Whether a job duty is an essential function is decided on a case-by-case basis. 
    The following questions will help determine the essential functions of a job:
    • What standards have you set? For example, an employer can require typists to type 75 words per minute or a cleaning person to clean 16 rooms a day. Employers are not required to show that the standards are necessary, but may be required to show that all employees are, in fact, held to the performance standards.
    • Are employees actually required to perform tasks that the employer claims are essential? An employer may list typing as an essential function of the job, but if the employer has never required someone in the position to type that will indicate that typing is, in fact, not an essential function.
    • Does the position exist to perform a specific task? An individual may be hired to proofread documents. The ability to proofread is an essential function since that is the only reason the job exists.
    • How many employees are available to perform the job function? If there are a limited number of employees who can perform the job function, it is more likely to be an essential job function.
    • What functions did past employees in the job perform? What do current employees in similar jobs do? The experience of those who have actually performed the job in question will highlight the essential job functions of that position.
    • How much time is spent performing the function? The more time that is spent on a particular function, the more likely it is to be an essential job function. For instance, if an employee spends the vast majority of work time at a cash register, that is evidence that operating the cash register is an essential function of the job.
    • What is the consequence of not performing the job? What will happen if the job is not performed? Airline pilots spend relatively small amount of their time landing planes. But the consequence of not being able to land a plane safely makes that an essential function of the pilot’s job.
    • Was a written job description prepared before advertising or interviewing for the position? If the function is listed in the job description, there is a likelihood that the EEOC or the courts will consider it essential.
    • Do the functions require special training or expertise? Functions that require training or possession of a specialized skill or license are likely to be considered essential.
    • Is there a collective bargaining agreement in place? For employers of union workers, the terms of a collective bargaining agreement are relevant to determining the essential job functions of particular positions.

Job descriptions can help identify essential job functions. Although the ADA does not force employers to put job descriptions in writing, written job descriptions can help employers set forth educational, experience, skill, licensure, and other requirements needed to perform a particular job. They can also identify any environmental factors that might be relevant, such as working in an ambient temperature environment or on a night shift. Written job descriptions that were put in place before a challenged employment decision was made can also help employers establish that any qualitative or quantitative production standards are legitimate and that they are 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 your company has to defend against a charge of disability discrimination. (See Chapter 03: Recruiting and Hiring.)

Reasonable accommodation

Disabled persons who are otherwise qualified and able to perform essential functions of a job are entitled to reasonable accommodations, which the EEOC defines as “modification or adjustment to a job, the work environment, or the way things usually are done that enables (a disabled person) to enjoy an equal employment opportunity. Reasonable accommodation is required in at least three situations:

  1. to allow an employee or job applicant to perform the essential functions of a job
  1. in application and testing procedures
  1. to permit an employee with a disability to enjoy privileges and benefits that are substantially equivalent to those given to nondisabled employees in similar situations. This aspect of reasonable accommodation includes access to areas such as lunch and break rooms. It also guarantees that employees with disabilities can participate in employer-sponsored events, such as picnics and parties.

Under the ADA, employers are required to accommodate only known disabilities. Unless the need is apparent, such as the employee who is in a wheelchair, It is the responsibility of the individual with the disability to make known the need for an accommodation. This notice does not have to specifically address either the ADA or reasonable accommodation. Rather, it may come from the individual, family, friends, health professional, or representative. Indeed, EEOC Guidance assumes what most employers understand:  few applicants or employees will walk into an employer’s office and say, “I need a reasonable accommodation under the ADA.” Instead, most individuals will present an employer with a set of facts that may indirectly indicate the need for an accommodation. For example, an employee may 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 30 pounds. 

Once an individual requests accommodation, an employer must make a reasonable accommodation for known disabilities of the employee or job applicant unless:

  • accommodation would be an undue hardship
  • accommodation would pose a direct threat to the health or safety of the individual for whom the accommodation is made or others
  • the only available accommodation is to transfer the individual to a fully-staffed position
  • the only available accommodation requires creating a new position for the individual (except in circumstances allowing temporary alternative work).

Taking adverse action

Before an employee can be denied a position based on a disability, the employer must be able to show clearly that the person cannot perform the job even with a reasonable accommodation. The employer must consider the possibility of providing reasonable accommodation before firing, demoting, or refusing to hire or promote the individual if the decision is based on a belief that the person’s disability precludes job performance. Examples of reasonable accommodations set forth in the regulations are:

  • making facilities used by employees readily accessible and usable by people with disabilities
  • job restructuring, part-time or modified work schedules
  • acquisition or modification of equipment or devices
  • job reassignment and other similar actions.

Verification of need of reasonable accommodation

When a disability or the need for an accommodation is not obvious, employers may ask for reasonable documentation about the disability and about any functional limitations. This can be done by obtaining documents from an appropriate health care provider or rehabilitation professional. Employers should take care in these situations not to request an employee’s entire medical history or information unrelated to the existence of a disability. An employer may also choose to discuss with the employee the nature of the disability and the need for further information. Finally, an employer may arrange for the employee 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 employee refuses to provide reasonable documentation or information, then there is no entitlement to a reasonable accommodation.

In seeking information about an employee’s medical condition that supports the request for an accommodation, employers should be careful so as not to make any inquiry prohibited by the Genetic Information Nondiscrimination Act of 2008 (GINA). See the discussion of GINA later in this Chapter for the wording of the notice that can be given when requesting medical information that will provide a safe-harbor for employers if genetic information is supplied by the employee or a physician.

Specific accommodations

Specific reasonable accommodations may include but are not limited to:

  • part-time or modified work scheduling
  • job restructuring of nonessential job functions
  • reassignment of a disabled individual to a vacant position
  • modification or acquisition of equipment or devices, which may include making existing facilities readily accessible to individuals with disabilities
  • modification of examinations, training materials or policies
  • providing qualified readers or interpreters, but not including personal items such as eyeglasses and hearing aids
  • providing a leave of absence.

Each request for accommodation must be analyzed on a case-by-case basis. A reasonable accommodation must always take into consideration two factors:

  1. the specific abilities and functional limitations of a particular applicant or employee with a disability
  1. the specific functional requirements and essential functions of a particular job.

Both the employer and the employee (or applicant) should be involved in the interactive process of identifying the possible accommodations. An employer should consider:

  • its resources and financial ability to provide an accommodation
  • the functional requirements of the job
  • the functional limitations of the employee
  • the potential disruption the accommodation may cause in the place of employment.

It is important to remember that the employer is not required to provide the best accommodation or even the accommodation requested or preferred by the employee. Rather, the accommodation need only be sufficient to meet the job-related needs of the employee seeking accommodation. Finally, 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 the employee's present position. If the employer does reassign an employee with a disability, the employer may only be required to reassign the employee to an available position. Under no circumstances is the employer required to remove another qualified employee from a position in order to accommodate another 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 that seniority system is not a “reasonable accommodation.” In other words, a disabled employee with less seniority who seeks to be reassigned to an available position cannot displace a nondisabled 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 numerous exceptions had been made in the past or if the seniority system has undergone frequent changes, it may be reasonable to make an exception to the seniority system to accommodate a disabled employee.

Undue hardship

An employer is not required to provide a reasonable accommodation when doing so would create an undue hardship on the employer. An undue hardship is defined as an action that would create significant difficulty or expense to an employer. In determining whether an employer has experienced an undue hardship, the following factors are considered:

  • the nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, and/or outside funding
  • the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed, and whether the accommodation also would benefit other employees
  • the overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type, and location of its facilities
  • the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity
  • the impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.

In contrast, the following factors are not considered when determining whether the accommodation would cause an undue hardship on the employer:

  • A comparison of the cost of the accommodation to the salary level of the position. For example, an accommodation costing $50,000 would not be considered an undue hardship merely because the disabled employee’s salary is $25,000.
  • A negative effect on the morale of co-workers, by itself, does not create an undue hardship.

Just as the EEOC and the federal courts determine whether to provide a reasonable accommodation on a case-by-case basis, they also determine whether the accommodation would create an undue hardship on a case-by-case basis. The burden of establishing an undue hardship is on the employer at all times.

Direct threat to health and safety

An employer may also deny accommodation to an individual normally protected under the ADA when the 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 in situations when a reasonable accommodation that would eliminate the risk or reduce it to an acceptable level is not available.

The EEOC defines a direct threat as a “significant risk of substantial harm.” In determining whether a direct threat exists, the EEOC and the federal courts examine the employer’s reasonable judgments regarding the following:

  • the duration of the risk
  • the nature and severity of the harm
  • the likelihood that the potential harm will occur
  • the imminence of the potential harm.

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.

Light-or restricted-duty positions

Sometimes an employer may be required to provide a light- or restricted-duty position for an employee with a disability. It is important to remember that the ADA does not require the creation of a light-duty position for a disabled 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 the position is filled by a disabled employee.

If an employer is considering providing a disabled employee with a light-duty position, the employer should first determine whether the light-duty assignment will be permanent or temporary. If it is temporary, the employer should next decide how long it will last and follow-up regularly to determine whether the light-duty assignment is still necessary or appropriate. This is important because employers could lose the ability to eliminate the temporary position if the disabled employee performs duties in that position for a lengthy 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 the employee's previous position if the employee is able to fulfill the essential job functions of the light-duty position.

Leave

One form of reasonable accommodation that employers often overlook is a leave of absence beyond the employee’s statutory entitlement under the Family and Medical Leave Act (FMLA). Even after an employee exhausts all available FMLA leave, the employer may be obligated to offer additional leave time if it can do so without an undue hardship. Creating an individual exception to the uniform application of an existing leave of absence policy will generally not qualify as an undue hardship. Rather, an individualized inquiry is required to determine if an additional leave would create such a hardship.

Documenting accommodation efforts

Perhaps the most important thing an employer can do to protect itself from a failure to accommodate claim under the ADA is to document carefully every step taken in the employer’s effort to accommodate a disabled employee’s needs. Even before an accommodation request is received, it is beneficial to have in place a clearly defined procedure so that employees can request accommodations and so managers can respond to those requests in an appropriate manner. Helpful provisions to include in such a procedure are:

  • providing for a careful review of the job description to ensure that the employee is being evaluated against the real essential functions for the position
  • establishing a documented record of all steps in the interactive process, including all meetings with the employee, medical personnel or human resources staff
  • obtaining independent medical advice when the extent of a disability or the scope of a requested accommodation is in question
  • documenting all alternative accommodations considered by the employer
  • establishing backup data on the hardships each proposed accommodation would impose
  • creating a contemporaneous record of the rationale for rejecting any requested accommodation
  • communicating the employer’s decision to the affected employee.

Disabilities and the hiring process

Pre-offer inquiries

The ADA prohibits an employer from requiring a medical examination or making disability-related inquiries before an offer is extended even if the inquiry is job related. An exception exists if the employer needs specific information to make the application process accessible to someone with a disability, such as if an applicant needs an accommodation as part of the process of evaluating the applicant’s qualifications for the job. For more information on ADA laws affecting the pre-offer stage of the hiring process, please refer to Chapter 03: Recruiting and hiring.

Post-offer inquiries and medical examinations

After an offer of employment, employers may inquire into an applicant’s prior sick leave usage, illnesses, diseases, impairments, and general physical or mental health. Post-offer questions do not have to be related to the specific job for which the applicant has applied. However, the post-offer questions must follow a real offer and cannot mask any intent to question the applicant based on a tentative offer of employment.

An employer may require a medical examination only after an offer of employment has been made, but the employment offer can be conditioned upon the applicant’s successfully passing the 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.” The post-offer medical examination can include a complete medical history and does not have to be job-related. In contrast, it is important to 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. For example, an employer may measure how much an employee can lift or how fast the employee can run at the pre-offer stage. The employer may not, however, measure an applicant’s blood pressure or heart-rate after performing the task. This would constitute a medical examination and is prohibited by the ADA.                 

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. For example, a test that measures whether an applicant has a compulsive disorder or depression is considered a medical examination for purposes of the ADA.

If an employer chooses to administer a pre-employment test, reasonable accommodations must be provided 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 example, employers must give oral, rather than written, tests to individuals with dyslexia. Furthermore, individuals with impaired vision may require large print or Braille. Deaf individuals may require sign language accommodation. However, if the employer is measuring a skill necessary to perform an essential job function of the position, the employer is not required to provide an applicant with an alternative method of testing. For example, where 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.

Drug tests

An employer may test an applicant or employee for current illegal drug use, as this test is specifically exempted from the ADA medical examination restrictions and is allowed at any time. Alcohol tests and tests for legal prescription drugs, however, are considered medical examinations under the Act – therefore, an employer is prohibited from administering these tests at the pre-offer stage of employment.  

In July 2016, state-approved medical marijuana distribution facilities began distribution in Minnesota. Employers who wish to conduct drug testing in Minnesota should note the additional rules and regulations in regard to the state’s medical marijuana program, including the creation of the state registry of patients approved to use marijuana.

Minnesota employers may have to accommodate employees whose drug test results are positive for marijuana if the employee consumed the drug for medicinal purposes in accordance with the law. This law prohibits employers from discriminating against individuals because of their status as a member of the state’s medical marijuana registry or because of a patient’s positive drug test unless the employee used, possessed, or was impaired my marijuana while on the employer’s premises or during work hours.

The law also allows employees subject to drug testing to provide verification of their enrollment in the medical marijuana program, meaning employees can then explain why their drug test results may be positive for marijuana. Minnesota employers cannot take disciplinary action for positive test results unless there is proof the employee used, possessed, or was impaired by marijuana at work.

Storing medical records

Employers must keep the confidential medical information of employees and applicants separate from the individual’s personnel files. Furthermore, employers may reveal medical information only in limited situations to the degree necessary for:

  • managers and supervisors, when the information is necessary for reasonable accommodation purposes
  • first-aid and safety personnel in the event emergency treatment is necessary
  • state or federal government offices during an investigation for compliance with the ADA
  • insurance purposes.

Health benefit plans 

While the ADA prohibits employers from discriminating on the basis of disability when employers provide health care benefits to their employees, Congress has created a way to shield certain health benefit plans from inspection under the ADA. The determination of whether a health benefit plan is lawful under the ADA involves a two-step analysis.

Step 1

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. If the provision is not a disability-based distinction, it is probably lawful under the ADA. For example, the ADA has indicated the following benefit distinctions are not disability-based and are lawful under the ADA:

  • providing fewer benefits for eye-care in comparison to other physical conditions
  • providing a lower level of benefits for the treatment of mental conditions in comparison to other physical conditions
  • setting limits on, or excluding from coverage entirely, benefits for experimental drugs or elective surgery.

Step 2

If the health benefit plan includes a disability-based distinction, the employer may be able to validate it by showing that the distinction is bona fide, such as demonstrating full compliance with 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 can show 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.

Substance abuse

Under the 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 would, be protected. 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 can prohibit the use of alcohol on the job. 

An employer may not discriminate against a former drug addict, who is not currently using drugs and who has been rehabilitated, because of a history of drug addiction. The ADA states that it should not be construed to exclude a qualified individual who meets any of the following criteria:

  • has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use
  • is participating in a supervised rehabilitation program and is no longer engaging in such use
  • is incorrectly regarded as engaging in such use, but is not.

While recovering addicts are protected under the ADA, the definition of a “qualified individual with a disability” does not include an individual who “is currently engaging in the illegal use of drugs.” Additionally, employees may be required to follow the Drug-Free Workplace Act and rules set by federal agencies relating to drug and alcohol use in the workplace regardless of the ADA.

Disabilities and food handling positions

The ADA requires the Department of Health and Human Services prepare an annual list of infectious and communicable diseases that are transmitted through food handling, such as salmonella or Hepatitis A. The current list may be accessed through the Centers for Disease Control at:

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 must consider reassigning the employee to a vacant position that does not involve food handling.

The Job Accommodation Network

The Job Accommodation Network (JAN) is a service of the Office of Disability Employment Policy of the U.S. Department of Labor.  It provides free consulting services for employers regardless of the size of their workforce. Services include one-on-one consultation about all aspects of job accommodations, including the accommodation process, accommodation ideas, product vendors, referral to other resources, and ADA compliance assistance.

Where to go for more information

Private businesses can access services of the Job Accommodation Network (JAN) in a variety of ways:

JAN SOAR (for questions that are related to accommodation, ADA and workplace issues): 

JAN's training tools:

YouTube Video Channel: