Employees with Disabilities

Disability is a legal term of art which is defined differently depending on which law is being applied. For example, disability could be different for purposes of determining whether a person can receive Social Security disability benefits. It is also defined differently under the federal and state disability statutes. Before an employer is required to give a reasonable accommodation, the employee must show that he or she is disabled within the meaning of the ADA or NYSHRL.

Under the ADA, an individual is disabled if (1) the employee has a physical or mental impairment which substantially limits a major life activity (2) the employee has a record of having such an impairment or (3) the employee is perceived as having such an impairment. Under the NYSHRL, the definition is generally the same but the employee need only have a medical condition which either prevents the exercise of a normal bodily function or is demonstrable by medically accepted diagnostic techniques.

Both statutes require that the employee be able to perform the essential functions of his job with or without a reasonable accommodation.

Reasonable Accommodation

The question then often comes up about what is a reasonable accommodation under the ADA or the NYSHRL? The answer is not simple. Basically, an employer is required to provide reasonable accommodations unless doing so would be an undue hardship. The EEOC guidelines explain that modifications to a job application process or to the work environment that would assist the disabled employee, may be reasonable accommodation. Specific examples given by the EEOC include, job restructuring, modified work schedules, modifying equipment, or reassignment to a vacant position. Under New York Law a leave of absence may also be a reasonable accommodation. Open ended leaves, however, are not reasonable so employees seeking leave as an accommodation should be sure to put an end date.

A request for a reasonable accommodation does not need to be in writing nor does an employee have to use magic words. Merely stating that an employee is undergoing medical treatments and may have trouble getting to work in the morning can trigger an employer’s responsibility to provide a reasonable accommodation.

The employee may have to provide documentation to the employer to establish the employee has a disability and needs a reasonable accommodation.

Once the employee gives notice of the need for a reasonable accommodation, the employer has a duty to engage in an interactive process with the employee to determine whether requested reasonable accommodation will be effective and not an undue burden, or whether there is some other reasonable accommodation would also be effective.

Direct Threat Exception

An exception to the reasonable accommodation requirement is where the employee poses a direct threat. A direct threat is a “significant risk of substantial harm to the health or safety of the employee or others, which cannot be eliminated or reduced by a reasonable accommodation.”

A common example is an employee with a seizure disorder whose job responsibilities include operating heavy and dangerous machinery. Employers must perform an individualized assessment of the employee to determine whether the impairment is a direct threat. The decision must be based on medical information and not generalizations and speculation about the threat.

Employment Lawyers on Long Island Can Help

If you have a question about a reasonable accommodation or disability discrimination on Long Island, contact Famighetti & Weinick PLLC, employment lawyers on Long Island. Our website is https://www.linycemploymentlaw.com and we are also on Facebook. Our phone number is 631-352-0050.