What Employers and Businesses Need to Know about the Disabled

What Employers and Businesses
Need to Know about People with Disabilities

It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.

The federal Americans with Disabilities Act (ADA), as well as Oregon law, prohibits employers from discriminating against disabled job applicants and employees. The ADA applies to employers with 15 or more employees; the Oregon law applies to employers with six or more employees.

Under both laws, mentally and physically disabled people 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 problems, 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 disabled person can perform the essential functions of a job, you have a duty to find out if a reasonable accommodation would help them perform the job. This could mean that you would take away 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 disabled person 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 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 reasonably accommodate that employee if the impairment substantially limits any major life activities. 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 them perform the job. This could mean changing the physical environment in your workplace. Examples are 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 problem. This could also mean relaxing or changing company policies. For instance, you might let a person take more breaks during the day if the worker has a mental disability that affects concentration.

If employers have questions about their obligations under the Oregon or federal disability law or any other employment laws, they may call the Technical Assistance for Employers Program at the Oregon Bureau of Labor and Industries at (503) 731-4200 in Portland. Technical Assistance offers a telephone information line, materials and seminars.

If you have questions about reasonable accommodations you may call the Job Accommodation Network at (800) ADA-WORK. This is a confidential service provided by the federal government. Employers can call this number and get expert advice about certain jobs and disabilities.

The ADA and Oregon law also prohibit discrimination against disabled people in places of public accommodation. All businesses are required to ensure that their public areas are accessible for disabled customers. This requirement affects all businesses that serve the public. Examples of such businesses are: restaurants, movie theaters, hotels, grocery stores, gift shops, coffee houses, doctor’s offices, stadiums and arenas and bookstores.

All new public facilities that were built after January 26, 1993 must comply with the ADA Accessibility Guidelines. In Oregon, all new public facilities and all those that undergo major renovations that change the usability of a building also need to comply with the Uniform Building Code. Renovations do not include normal maintenance, painting or other superficial changes. This law is enforced by the Building Codes Division of the Oregon Department of Consumer and Business Services, which can be contacted at (503) 378-4133 in Salem.

The ADA and Oregon law also require that buildings built before 1993 also be accessible to the disabled. Architectural barriers must be removed if this can be done without significant difficulty or expense. For example wheelchair ramps must be made available for customers, aisle ways must be made wide enough for wheelchairs, and bathrooms must have grab bars and door hardware. The Oregon Building Codes Division also enforces this law.

The ADA requires that all businesses with parking spaces must make some available, for disabled persons. Such spaces must be marked with visible signs and businesses must create restricted areas next to these spaces for people with wheelchair-accessible vans. The Oregon Building Codes Division enforces this. The federal Architectural and Transportation Barriers Access Board can also answer questions you may have about these requirements. It can be reached at (800) USA-ABLE.

Legal editor: Janay Haas, August 2009