Bar News - May 18, 2007
Employment Law: Disabled Workers Gain More Rights under NH Law
By: Julie A. Moore
New Hampshire’s Law Against Discrimination, RSA 354-A, was amended effective January 1, 2007 to expand the rights of disabled individuals in the workplace and to impose certain new responsibilities on New Hampshire employers, including law firms and small businesses.
New Hampshire employers are prohibited from discriminating against their employees in the terms and conditions of their employment based on certain legally protected categories, which include physical or mental disability, as well as age, sex, sexual orientation, race, color, marital status, religious creed, or national origin. An “employer” generally includes all public and private employers who have six or more workers, including non-profit charitable and educational institutions. Discrimination means that an employer cannot consider an employee’s protected characteristic in decisions including hiring, firing, promoting, demoting or compensating workers.
Now, New Hampshire employers are specifically required to make “reasonable accommodations” for the known physical or mental impairment of a qualified applicant or employee with a disability. An exception exists where the employer can affirmatively demonstrate that the accommodation would impose an “undue hardship” on the operation of its business. Further, the law makes it illegal for employers to discriminate against applicants or employees because of the individuals’ need for a reasonable accommodation. This law is intended to track the language and intent of the Americans with Disabilities Act (ADA), which has been effective since the early 1990s and applies to employers with 15 or more workers.
This newly-amended law, and its federal counterpart, contains many legal buzzwords and traps for the unwary. It can be difficult in its application and requires an analysis of many components, including how words and terms are defined by statute and case law. Once the legalities are understood, applying the law requires a fact-specific analysis to the particular circumstances.
An individual with a disability is a person who:
- Has a physical or mental impairment that substantially limits one or more major life activities;
- Has a record of the impairment;
- Or, is regarded as having an impairment.
Impairments are not temporary but, rather, are either permanent or long-term in nature. In Guzman-Rosario v. United Parcel Service, 397 F.3d 6 (1st Cir. 2005), for example, the First Circuit held that the plaintiff was not substantially limited in the major life activity of working because evidence that the plaintiff was dizzy showed only that she could not perform her job. It did not show that she was unable to perform a broad class of jobs, as is required for “working” to qualify as a major life activity.
In Hess v. Rochester School District, 396 F. Supp. 2d 65 (D.N.H. 2005), the teacher/plaintiff had attention deficit hyperactive disorder (ADHD), which he claims substantially limited his ability to work or learn. The teacher claimed that, because of his disability, he could not supervise disruptive students. He, therefore, requested that his unruly students be permitted to play Nintendo and listen to music during his class to control their behavior, as an accommodation. The district court concluded that the teacher was not disabled. The evidence established that the teacher was not properly medicated and, if he were medicated, his symptoms would have been in control. Since disability is measured from the perspective of a plaintiff who is properly treated, the plaintiff’s failure to take appropriate medications defeated his disability claim.
An individual is a “qualified individual with a disability’” when he or she can perform the essential functions of the job, with or without a reasonable accommodation.
In determining what functions of a job are essential, consideration is given to an employer’s judgment or characterization of the job and any written job description. Additional factors include input from the supervisor and the work experience of past and current occupants of the same position. For example, in a recent First Circuit case, Mulloy v. Acushnet Co., 460 F.3d 141 (1st Cr. 2006), the court held that, in analyzing the request of an individual to work remotely from home and not at the corporate headquarters, the employer must assess whether working from the company headquarters was an essential function of the position. If so, the company was not required to permit the employee to work remotely because an employer is not required to offer an accommodation that relieves an employee of an essential job function.
A “reasonable accommodation’” may include but is not limited to the following:
- Making existing facilities used by employees readily accessible to and usable by individuals with disabilities.
- Restructuring jobs.
- Offering part-time or modified work schedules.
- Reassigning individuals to a vacant position.
- Acquiring or modifying equipment, devices, examinations, training materials or policies.
- Providing qualified readers or interpreters.
Reasonable accommodations are unnecessary if they pose an “undue hardship,” which is an action that would require significant difficulty or expense when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation. Undue hardship is determined on a case-by-case basis.
In light of this new legal mandate, New Hampshire lawyers must understand some basics about disability accommodation. First, it is important that business attorneys, for example, recognize when a client company must consider reasonable accommodation in regard to an employee with a medical condition, such as depression or heart disease. Second, law firms are also be reminded that this law applies to them, if they employ the requisite number of workers.
Several affirmative steps are recommended:
- Amend handbook policies to include a policy about disability accommodation. (See related sidebar on page 10.)
- Ensure that written job descriptions are accurate, up-to-date, and define essential job functions and the physical/mental requirements of each function.
- Review all advertisements and job postings to ensure consistency with job descriptions.
- Train and educate supervisors, managers, and principals/partners/executives on the basics of disability discrimination law, so that the law firm or employer can respond appropriately and consistently with the law when faced with a situation requiring a workplace accommodation.
Who Needs to Consider Accommodation?
The following is a five-step analysis for determining whether to consider disability accommodation:
1. Is the employer subject to the provisions of the law?
2. Does the individual have a physical or mental disability?
3. Can the individual perform the essential functions of the job?
4. Is a reasonable accommodation required to enable the individual to perform essential functions?
5. Does the reasonable accommodation pose an undue hardship to the employer?
Sample Accommodation Policy
An example of a handbook policy that addresses disability accommodation follows:
The firm (or company) is committed to complying fully with state (and federal law) concerning individuals with physical and mental disabilities and ensuring equal opportunity in employment for qualified individuals with disabilities. All employment practices and activities are conducted on a non-discriminatory basis.
Where the disability affects the performance of job functions, reasonable accommodation is available to any employee with a disability who is otherwise qualified, except when providing such accommodation imposes an undue hardship on the firm’s operation. All employment decisions are based on the merits of the situation. If an individual needs an accommodation, it is his or her responsibility to advise the employer (note: the employer should provide the name/position of the internal contact person).
Accommodations are made on an individual basis, as the nature and extent of a disabling condition and the requirements of a job may vary. The firm may ask for suggestions in defining what accommodations are needed, and employees must fully engage in an interactive process to best identify a reasonable accommodation.
Employees are required to cooperate fully with any medical examinations or inquiries that are job-related and consistent with business necessity, such as when there is evidence of a job performance or safety problem.
Qualified individuals with disabilities are entitled to equal pay and other forms of compensation as well as equal treatment in job assignments, classifications, advancement, organizational structures, position descriptions, and other personnel actions. Leave of all types will be available to all employees without regard to their status as disabled.
Attorney Julie Moore is president of the Employment Practices Group in North Andover, Mass. Her practice focuses on risk-management issues for employers, including training seminars, internal investigations and consulting services. She has been a NH Bar member since 1992.