Title I of the federal Americans with Disabilities Act, as well as Oregon state law, prohibits employers from discriminating against job applicants and employees who experience a disability. The federal law 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 in the workplace and application process. People with mental impairments, such as depression, are protected just as people with physical impairments that cause them to use wheelchairs, for instance, are protected. These laws also protect people with a past record of a disability and those people who do not have a disability but are treated as if they did because of a mistaken belief on the employer's part. Employees who are denied training, promotions, benefits, or who are harassed, demoted, or discharged when an employer learns of the existence of a disability or thinks that an employee has a disability, may have protection under state and federal law.
As an employer, you must be careful not to discriminate against any applicants who apply for positions at your business or organization, including those who may have disabilities. What questions you may lawfully ask an applicant depends on where you are in the employment process.
In general, before you make an offer of employment, you may not ask questions about an applicant’s physical or mental state or any past medical conditions. This also means you may not ask questions on an application or during an interview that are likely to draw out information about a disability. For example, the question “do you drink alcohol?” is okay. However, “How much alcohol do you drink?” or “Have you ever been treated for alcohol problems?” are questions likely to lead to whether an applicant has alcoholism and are therefore prohibited. Some lawful questions may unintentionally result in responses that include information about a disability. For example, it is okay ask to ask an applicant about a gap in his or her employment history. However, if the applicant states that he or she spent time undergoing medical treatment, you should not follow up with any disability-related questions unless the applicant indicates a need for some type of accommodation.
During the application process, you may become aware of an applicant’s disability either because the disability is obvious (for example, the applicant is in a wheelchair) or because the applicant has volunteered the information. In such a circumstance, if it is reasonable to ask whether the disability might cause the applicant difficulty in completing a required task, you may then ask the applicant to describe or demonstrate how they would perform the task and whether any reasonable accommodation will be necessary.
You may tell applicants about your attendance requirements and ask whether they can meet those requirements. You may also ask applicants about their attendance record at previous jobs, but you may not ask about how often they took sick leave, or about their injuries or illnesses.
While the general rule is that you may not ask an applicant about his or her disability, here is an exception: If you voluntarily participate in an affirmative action program that collects information for the benefit of people with disabilities, you may be required by law to invite applicants to voluntarily say whether they are disabled — but only for the purposes of the affirmative action program. In this situation you must make it clear on your forms that the information will be used solely in connection with your affirmative action efforts, that the information will be kept confidential, and that the applicant’s decision not to disclose will not subject the applicant to negative treatment. The information collected should not be sent to the individual making the hiring decision, or considered in the application process.
You may not require a medical examination before offering someone a job. A medical examination is a procedure or test that seeks information about an applicant’s physical or mental impairments or health. Factors which are used to determine whether a test is “medical” include whether it is administered by a health care professional, whether it is invasive, and whether the employer is using the test to try to determine the applicant’s physical or mental health or impairments.
Tests that are not medical examinations may be given before offering someone a job. For example, you may require a physical abilities or agility test to find out whether an applicant can perform job tasks before you make a job offer, but only if you require the same test of everyone in that job category. Still, keep in mind that job requirements that tend to screen out persons with disabilities are only allowed legitimate only if they are related to the job and consistent with a business necessity.
After you make an initial job offer to an applicant, you may require him or her to undergo a medical examination as condition to a final offer of employment, so long as all other applicants entering similar jobs are subject to the same requirement.
All medical information obtained by testing must be kept confidential, maintained on separate forms and in a separate medical file (not in the personnel file).
If you learn at any stage in the application process that an applicant has a disability that requires accommodation, you have a duty to find out if a reasonable accommodation would help the individual perform the essential functions of the job. This is referred to as an employer’s “duty to engage in the interactive process” with the applicant to try to find a reasonable accommodation. You must act in good faith and should not delay or obstruct the process. Your obligations to provide reasonable accommodations in order to make the workplace accessible and usable may include things like:
However, as an employer, you are not required to provide any accommodation that would cause an “undue hardship” on your business. An accommodation that would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business would be considered an undue hardship. The size of an employer, its financial resources, and the nature and structure of its operation are all factors considered in determining whether an accommodation requested would constitute an undue hardship.
This could mean that you change minor or incidental job duties to accommodate an applicant, but it does not necessarily mean that you need to change or eliminate 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, or if the reasonable accommodation would cause you undue hardship, 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 inability to perform the duties that all employees in the position are required to perform.
If you do screen out an applicant based on his or her disability, you must be able to demonstrate that the reason for withdrawing the job offer was job-related and consistent with business necessity, or that the applicant was excluded to avoid a direct threat to safety to the applicant or others. You must also show that no reasonable accommodation was available or, in the alternative, that providing the necessary accommodation would cause you undue hardship.
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 for asking 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 ability to perform his or his or her job duties, 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. Your duty to work with your employee in good faith to come up with an appropriate reasonable accommodation continues throughout his or her employment.
Again, the key to the interactive process for making accommodations is an open, ongoing communication with your employee. Ask specifically about how the employee’s 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 editors: Caitlin Dolan and Megan Dolan, February 2016