Relevant disability-related laws in employment
There are federal and state laws that offer civil rights protections to people with disabilities in the workplace. These laws prohibit discrimination on the basis of disability, and work to ensure equal treatment for employees with disabilities. Private employers, federal/state/local governments, employment agencies, labor organizations, and labor-management committees are all expected to refrain from job discrimination, and may face legal consequences if anti-discrimination laws are violated.
In most situations, employees with disabilities are covered by the Americans with Disabilities Act (ADA). However federal applicants/employees are covered under the Rehabilitation Act. The protections are similar, but there are some differences in recourse procedure for federal employees.
The Americans with Disabilities Act (ADA): Title I: prohibits discrimination against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations.
The Rehabilitation Act of 1973: prohibits discrimination on the basis of disability in programs conducted by federal agencies, programs receiving federal financial assistance, federal employment and in the employment practices of federal contractors.
The Family and Medical Leave Act (FMLA): entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons, with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.
The Massachusetts Employment Discrimination Law (M.G.L. c. 151B §4): is comparable to the ADA in its protections, however it covers employers with 6 or more employees.
Executive Order 592: the Executive Branch of the Commonwealth has specific policies intended to implement, coordinate, and monitor policies around non-discrimination, diversity and equal opportunity in state government.
What is disability discrimination in the workplace?
Disability discrimination occurs when an employer (or other covered entity) treats an applicant or employee with a disability unfavorably based solely on their disability or fails to provide an accommodation that is both reasonable and necessary. Disability discrimination can occur in various aspects of employment, including: interviewing, hiring, pay, training, job assignments, promotions, layoff, and firing.
Harassment based on disability is illegal, although the law does not offer protections for simple teasing, offhand comments, or isolated incidents. This gray area can be challenging to navigate. It can be helpful to reflect on whether you are being treated differently because you have a disability, or if you are being treated poorly and you have a disability. It is also useful to consider the nature of what was said or done to you, and if there is a recurring pattern of abuse.
You can find additional information at the Equal Employment Opportunity Commission, which offers a wide range of fact sheets, question & answer documents, and other publications to help employees and employers understand the complexities surrounding employment rights/employer obligations.
Do disability protections apply in your situation?
The laws above offer employment rights protections to employees with disabilities, aim to remove barriers, and ensure an equal workplace. It is important to note that these laws do not offer special treatment or an advantage to individuals with disabilities. To qualify for protection under these laws, a worker must meet the legal definition of disability.
The ADA offers protections if an individual has a disability, a history of disability, or if an employer believes the individual has a disability even if that is not the case. Under the ADA, disability is broadly defined as a physical or mental impairment that substantially limits one or more major life activities. Major life activities are understood as functions that are important to daily life. While there is no exhaustive list, some examples include eating, breathing, and working. This definition of disability from the ADA is generally used for all of the other civil rights laws mentioned.
For a person’s job to be protected by anti-discrimination laws in the workplace, the employee must be a person with a disability who:
- Meets the requirements of the job — has the necessary education, experience, skill set, or licenses as outlined by an employer.
- Can perform the essential functions of a job — the basic job duties that are essential to performance — with or without reasonable accommodation.
Reasonable accommodations in employment
State and federal anti-discrimination laws require employers to provide reasonable accommodations that will allow an employee with a disability to perform their essential job duties. Employees can request a reasonable accommodation during the application or offer processes, or at any point after they start employment.
As outlined in Title I of the ADA, a reasonable accommodation in an employment setting is “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities." Typically, reasonable accommodations are focused around:
- Adjustments to a job application process.
- Modifications to the work environment or changes to customary policies/practices that enable a qualified individual to perform the essential functions of the job.
- Adaptations that allow an employee with a disability to enjoy equal benefits and privileges of employment in the same way as similarly placed employees without disabilities.
Each job has different requirements and essential functions. When a reasonable accommodations request is made, it is important to understand the core job duties and if the accommodation will interfere with the employee's ability to perform those duties. A list of job duties may be found in the job posting or description.
If a person cannot perform the essential functions of their job, with or without reasonable accommodations, their employer is not obliged to keep them on in that role. Therefore it is important for an employee to be clear exactly what the essential functions of their job are and to request any reasonable accommodations they may need to perform those essential functions.
Employers cannot refuse to hire a prospective employee or terminate an employee solely because their disability-related limitations prevent them from performing non-essential job tasks.
Reasonable accommodation process
The reasonable accommodation process typically involves:
- A request from the applicant/employee to their employer.
- The interactive process, where the employer evaluates the request and may suggest or discuss various possible options with the applicant/employee.
- A decision, which could be:
- The reasonable accommodation is granted as requested.
- A reasonable accommodation is granted with different specifics from what was requested.
- The reasonable accommodation was denied.
Employers do not need to provide a reasonable accommodation when an employee has not made a request, however if an employer notices that there is an obvious unmet disability-related need, they should ask the employee if they need assistance. In most instances the reasonable accommodation process should start with the employee making a request to the employer. When making the request, it is best practice for the employee to identify themselves as a person with a disability, have an idea of what they need, and clearly establish a connection between their disability-related limitations and what they are requesting.
Once the request has been made, this opens up a dialogue between employee and employer that is formally known as the interactive process. The employer has an obligation to evaluate the request and determine whether it is possible to provide it without undue hardship.
Undue hardship means that:
- The accommodation would be significantly difficult or expensive for the employer to provide,
- Providing it would result in waiving essential job duties, or
- It would fundamentally alter the nature or operations of the business.
An employer must evaluate whether or not an accommodation would cause undue hardship on a case-by-case basis. If an accommodation results in undue hardship, the employer is not obligated to provide the request. If the employer decides they cannot fulfill the request, they are obligated to consider offering an alternative option. Whether or not any given request will be considered reasonable is going to depend on the particulars of the situation.
EEOC provides detailed guidance on reasonable accommodation requests including undue hardship and issues concerning the interplay between reasonable accommodations and conduct rules.
Things to consider when making a reasonable accommodation request
If you are planning a reasonable accommodation request, you can use MOD's contact form to request guidance for your specific situation. The reasonable accommodation process is highly individualized, and will vary depending on your job duties and your needs. Here are some general considerations:
- Prepare the logic and wording
- Decide what wording you are comfortable using to describe your disability-related functional limitations. You do not have disclose your diagnosis.
- Make sure you are clear on the essential functions of your job and that you will be able to perform them if given the requested accommodations.
- Think about what your employer expects from you and how your job is set-up so you can anticipate how your employer may react to your reasonable accommodation request. Thinking through the options and possible responses before making the request can help the process go better and avoid you painting yourself into a corner. An employer is not obligated to fulfill a request that would waive essential job duties. They are also not obligated to keep employing someone who is unable to do the essential functions of the job.
- Prepare a clear explanation of the link from your disability-related limitations to the reasonable accommodations you are requesting.
- Find out the reasonable accommodation process at your place of work
- Identify the appropriate point of contact for the request. Depending on where you work, this could be an HR representative, an ADA coordinator, or simply your supervisor. If you are a state or municipal employee, you should contact your ADA/504 coordinator.
- If you work in a large organization or for the government, there might be a very structured process to follow and specific forms to use. Make sure you know the correct protocol before beginning your request.
- Gather any needed supporting documentation from a relevant medical provider
- A relevant provider is someone who can speak about your disability-related limitations. This might be your doctor, therapist, or other licensed provider.
- Tell your medical provider what you are comfortable they disclose. There is no obligation to disclose a diagnosis. You can discuss how you prefer your limitations to be described and what is relevant to mention.
- You should share your job description with your medical provider. Be aware that if your provider's supporting documentation implies you cannot perform the essential functions of your job, even with reasonable accommodation(s), your employer is not obligated to keep you in your role.
- It is not the role of your provider to judge what may or may not be a reasonable request. In most cases, the provider's role is to clarify your functional limitations. It usually works well for you to provide your employer with the explanation of how these limitations make the accommodation(s) you are requesting necessary.
- Your medical documentation should substantiate that you are a person with a disability, and be specific enough to support the link between what you are requesting and your disability-related limitations.
- Write your reasonable accommodation request. While a request does not have to follow a particular format, some employers ask you to use specific forms. Making your request in writing (a letter or e-mail) can help facilitate a faster resolution and. It also provides evidence that you made a request. Whatever format you use, you want your request to clearly outline the link from your disability-related limitations to the reasonable accommodation(s) you are requesting, while not implying problems or divulging details you might be uncomfortable with later. When you write your request you should:
- Identify yourself as a person with a disability.
- State that you are requesting an accommodation under the ADA, or if you are a federal employee, the Rehabilitation Act of 1973.
- Identify your specific problematic job tasks and explain your functional limitations affecting these tasks.
- Present your accommodation ideas.
- Refer to attached supporting documentation from a medical provider, if applicable.
- Request a timely response from your employer by specifying a date (usually 1-2 weeks from your request).
- After you make your initial request, your employer has an obligation to engage in the interactive process, which is a back-and-forth dialogue between employer and employee which ultimately results in a decision about the accommodation. You can prepare for this by:
- Anticipating what questions they might respond with or concerns they might have.
- Considering alternative accommodations they might suggest and evaluate which would work for you, which would not, and why.
- Keeping track of response time — if your employer does not respond by the date you have given, promptly reach out and request a response.
- Keep records of relevant communications, important dates and times, and decisions that might be useful to refer to in the future. If an employer does not respond in a timely manner, it will be helpful for you to reference this lack of communication if you choose to file a complaint, so the dates as well as the content of communications can be valuable.
MA state employees' reasonable accommodation process
Executive Order 592 (EO 592) requires the Executive Branch of the Commonwealth to have a standardized process for requesting reasonable accommodations, reviewing requests, and for appealing denials of requests. Additionally, employees with disabilities are invited to voluntarily disclose that they have a disability for the purpose of affirmative action.
State employees with disabilities will find that the protections and rights under EO 592 are comparable to those under state and federal anti-discrimination laws. However, EO 592 and its implementing guidelines provide Executive Branch state employees with a specific process for requesting reasonable accommodations as well as the opportunity to participate in an internal grievance procedure and potentially avoid pursuing a complaint with an enforcement agency.
The specific process might look like the following:
- Employees with disabilities would initiate a request for reasonable accommodation with the designated ADA Coordinator at their agency.
- The ADA Coordinator should provide the employee with a standardized form to be completed both by the employee and medical provider (see Reasonable Accommodation Website). This will substantiate the request and explain the connection between disability-related limitations and the specific request that has been made.
- Upon receipt of the completed form, the ADA Coordinator has 20 days to respond to the employee. The response must include the rationale for the decision as well as appeal rights if the request is denied.
- Appeals are submitted to the ADA Coordinator for the Secretariat Agency, who would similarly need to provide a rationale for their decision. The final level of internal appeal is with the Office of Diversity and Equal Opportunity. If an employee is not successful, their recourse is to file an administrative discrimination complaint at either the Massachusetts Commission Against Discrimination or the Equal Employment Opportunity Commission.
Employees are not required to participate in the internal grievance process, however utilizing this process provides the employee with an understanding of the employer’s position regarding their request and the opportunity to address and rebut particular points during the grievance process. It also increases the likelihood that an issue can be resolved sooner by avoiding the lengthy process associated with a discrimination complaint at an enforcement agency. At any time, an employee can choose to forgo the internal process and pursue a complaint at an outside enforcement agency.
MOD provides information for state employers on the ADA Compliance for Executive Branch Agencies page and this is where a list of the ADA Coordinators for each state agency is provided. MOD offers technical guidance to state employers and employees who are participating in the reasonable accommodation process or contemplating doing so.
Enforcement and recourse
If you think you have experienced disability-related discrimination in the workplace, MOD can help you analyze the nuances of your unique situation, provide feedback, and help you understand your options before you launch into a complaint. MOD is not an enforcement agency, but we can talk through your recourse options and help you understand if it is disability-related discrimination. MOD cannot provide legal representation or advice to individuals.
If you want to file a complaint with an enforcement agency, there are different options available depending on the situation. Upon receipt of a complaint, an enforcement agency will investigate the matter neutrally by collecting information from both sides. After investigation they will determine whether there was a violation of the law that they enforce.
Private employees and state/local government workers can either:
- File with the Massachusetts Commission Against Discrimination (MCAD), OR
- File with the Equal Employment Opportunity Commission (EEOC) (only for employers with 15 or more employees).
Both of these processes have time limits: typically a complaint must be filed within 300 days of the discrimination occurring. There is information on both websites to help you understand more about how their complaint processes work.
Federal employees can contact their EEO counselor at the agency where they work or where they applied, within 45 days of the discrimination occurring.
If you would like further information, the enforcement agencies provide authoritative detailed guidance:
- EEOC provides definitions, frequently asked questions and resources.
- MCAD provides an overview and downloadable detailed guidelines on disability discrimination on employment.
If after reading the information on this page, you have disability-related questions, MOD can discuss the nuances of your unique case and help you understand your options. Use our contact form to give us the key details of your situation and your questions.
If you can make good use of our online information before contacting us, it helps us serve as many people as possible.