Title I of the federal Americans with Disabilities Act (ADA), as well as Oregon law, prohibits employers from discriminating against job applicants and employees who experience a disability. The ADA applies to employers with 15 or more employees; the Oregon law applies to employers with six or more employees.
Under both laws, people who experience a mental or physical impairment are protected from discrimination. Employers may not discriminate against people who have impairments like depression, just as they may not discriminate against people with physical disabilities.
As an employer, you must be careful not to discriminate against any applicants who apply for positions at your company, whether they have disabilities or not. This means you may not ask questions during an interview about an applicant’s physical or mental state or any past medical conditions, or include these kinds of questions on applications. If it is obvious that an applicant has a physical or mental disability that might affect his or her ability to do the job, you may ask the person to describe or demonstrate how they would perform the job. You may ask applicants about their attendance rate at previous jobs, but may not ask about how often they took sick leave, or about injuries or illnesses.
Once you have offered the job and before the worker actually begins the position, you may require a physical abilities test to make sure he or she can perform the job duties — only if you require the same test of everyone in that job category. When determining if a person with a disability can perform the essential functions of a job, you have a duty to find out if a reasonable accommodation would help the individual perform the job. This could mean that you remove minor or incidental duties from a job, but it does not mean that you need to change the essential functions of the job. For example, if an office clerk position requires that most of the work time is spent filing but occasionally requires driving a car to make deliveries, you might need to assign the driving function to someone else to accommodate an employee whose disability prevents driving. But a delivery service would not be required to accommodate a person with a disability who cannot drive if the job requires driving most of the work time. If a person to whom you have extended a job offer cannot perform the essential functions of the job, with or without reasonable accommodation of any disability they may have, you may rescind the job offer before the person actually starts.
You do not have an obligation to hire people with disabilities if they lack the skills and experience to perform the essential functions of a job. You should develop job descriptions for each position in your company that clearly state the duties performed in each position. This way, if you need to rescind a job offer or fire an employee, you can show that your reason for making this decision was based on the person’s failure to perform the duties that all employees in the position are required to perform.
Once an employee has begun working for you, you may request information about his or her physical or mental health, but only if the reason is job-related and consistent with business necessity. For example, if you notice an employee has developed a limp in his or her walk, but the essential functions of their position do not require a lot of walking, you may not ask him or her for medical information about the condition.
If an employee approaches you about a physical or mental impairment that is affecting his or her job performance, you have a duty to offer reasonable accommodations to that employee if the impairment substantially limits any major life activity. A major life activity includes hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, performing manual tasks, and caring for oneself.
The key to the accommodation process is open communication with your employee. Ask specifically about the impairment and how this impairment is affecting his or her job. Then talk with the employee about steps you can take to help him or her perform the job. This could mean changing the physical environment in your workplace. Examples include: providing a chair with more back support for an employee with a back disability or providing a magnified viewing screen on a computer monitor for an employee with a vision impairment. This could also mean relaxing or changing company policies. For instance, you might let a person take more breaks during the day if the employee has a mental disability that affects concentration.
Legal editor: Lana Traynor Hayes, September 2013