Q. What laws protect the employment rights of people with disabilities?
A. There are federal and state laws that protect people with disabilities against discrimination in terms, conditions or privileges of employment: the federal Americans with Disabilities Act (ADA), 42 USC sec. 1201 et seq., and Oregon´s disability law, amended in 1997, ORS 659.400 et. seq.
 
Q. Must all employers comply with these laws?
A. Employers of 15 or more employees must comply with the ADA, and employers with six or more employees must comply with Oregon´s disability law. Employers covered by both state and federal laws (all those with 15 or more employees) must apply the standard most beneficial to the employee.
 
Q. How do state and federal laws define a "person with a disability"?
A. Both federal and state laws define a person with a disability as an individual who has a physical or mental impairment that substantially limits one or more major life activities, or has a record of such an impairment, or is regarded as having such an impairment.
 
Q. What are major life activities?
A. Major life activities include, but are not limited to self-care, ambulation, communication, employment and ability to acquire, rent or maintain property. They are activities that the average person in the general population can perform with little or no difficulty. For example, most people can walk three blocks with little difficulty. An inability to do so could be considered a disability. In contrast, the average person cannot walk ten miles without growing fatigued. The inability to perform this activity would not constitute a disability.
 
Q. Are temporary conditions considered disabilities?
A. Temporary impairments of short duration, such as colds, flu, sunburn, or broken bones that heal normally, are excluded from the legal definition of "disability."
 
Q. Are alcoholism or drug addiction considered disabilities?
A. Alcoholism is considered a disability under state and federal law. Current use of illegal drugs is not considered a disability, and a company policy may prohibit employees from consuming or having alcohol or illegal drugs on company premises, or from coming to work impaired by alcohol or illegal drugs. However, employees undergoing treatment for drug addiction are protected under both state and federal law.
 
Q. Which conditions are excluded from the definition of "disability?"
A. Conditions that are not considered disabilities include transvestitism, pedophilia, exhibitionism, voyeurism or other sexual behavior disorders, compulsive gambling, kleptomania and pyromania. Neither federal nor state laws consider homosexuality a disability.
 
Q. Do the ADA and state disability laws require an employer to hire or place a disabled person in a position?
A. No. The ADA and state disability laws prohibit discrimination in hiring and placement against disabled persons who are otherwise qualified and who can perform the essential functions of a job with or without reasonable accommodation. The employer must accommodate such individuals if such accommodation would not create an undue hardship.
 
Q. What does "otherwise qualified" mean?
A. It means that the individual meets the general requirements for the job (i.e., necessary licenses, training, and experience).
 
Q. How do you define "essential functions"?
A. Essential functions are those that are fundamental to accomplishing the job. Considerations in determining essential functions include: the time it takes to perform the function, the consequences of not performing the function, whether the position exists to perform that function, and whether there are other employees that can perform the function.
 
Q. How is "reasonable accommodation" defined?
A. Reasonable accommodation is a modification or adjustment that enables a person with a disability to apply for a job (i.e., holding a job interview in an accessible location); to perform the essential functions of a position (i.e., purchasing an amplifier to allow a hearing-impaired person to talk on the telephone); or to enjoy the same benefits and privileges of employment as other employees (i.e., holding a company function in a location accessible to all employees).
 
Q. How does an employer know if an employee needs reasonable accommodation?
A. Since an employer may not ask medically related questions of an applicant, the employer may not discuss reasonable accommodation unless the applicant initiates the discussion. Once a person is hired, if the need for accommodation is obvious (for example, the individual uses a wheelchair), the employer may ask what accommodations the person will need. After the point of hire, if the disability is not obvious to the employer, the burden is on the employee to tell the employer about the disability and the need for accommodation. Once alerted of a disability, the employer should begin an interactive process with the employee to learn what accommodation, if any, the employee needs. With this information, the employer can decide if and how the accommodation can be provided.
 
Q. When does reasonable accommodation become unreasonable?
A. It becomes unreasonable if it would cause the employer an undue hardship. An undue hardship is an action that is significantly difficult or expensive in relation to the size of the employer, the resources available and the nature of the business.
 
Q. Are there limitations on the questions an employer can ask an applicant?
A. Yes. An employer may not ask if an applicant is disabled or inquire about the nature or severity of a disability. Employers may be liable if they ask questions that would elicit information about a disability (i.e., "How many times have you been sick in the last year?") Employers should focus inquiries on an applicant´s ability to perform job-related functions.
 
Q. May employers require an applicant to take a medical examination?
A. No. An employer cannot require a medical examination until after a job offer has been made. However, an employer may condition a job offer on the results of a post-offer medical examination if the employer requires all entering employees in the same job category to take the examination.
 
Q. If an employee asks for reasonable accommodation, may an employer require medical verification of the disability?
A. Yes. Upon receiving a request for reasonable accommodation, an employer may request additional information, including medical verification of the condition requiring accommodation.
 
Q. Can medical information be kept in an employee´s personnel file?
A. No. All medical information must be collected and maintained on separate forms and in separate files, and treated as confidential medical records.
 

 

---

The Technical Assistance for Employers unit offers employer seminars, handbooks, and other materials covering a number of topics. For additional information, visit our website at www.oregon.gov/boli/ta  or call our Employer Assistance line.

 

Technical Assistance for Employers

Bureau of Labor and Industries

800 NE Oregon Street, Suite 1045

Portland , OR 97232

971-673-0824

www.oregon.gov/boli

These materials were prepared as a general summary and teaching guide. The mission of the Technical Assistance for Employers Program is to promote compliance with civil rights and wage and hour laws through education. Technical Assistance does not provide legal advice. In order to determine the legality of any matter or to protect your legal rights, you should contact an attorney. Check the yellow pages of your telephone directory or contact the Oregon State Bar Lawyer Referral Service at 1-503-620-0222 or 1-800-452-7636. THIS INFORMATION IS AVAILABLE IN AN ALTERNATE FORMAT.