Following is a list of frequently asked questions about employment rights and discrimination. Each specific case of employment discrimination must be evaluated according to its own facts and the laws which apply.
These questions and answers do not take the place of legal advice for any specific case of employment discrimination. For advice about your specific case, DRO recommends that you consult a lawyer.
- Can the employer refuse to hire me if I have a disability?
- Is the employer required to hire me because I have a disability?
- What is reasonable accommodation?
- What are examples of reasonable accommodation?
- Must the employer make reasonable accommodation for my disability?
- May the employer ask about my disability when I apply for employment?
- Will I lose my right to reasonable accommodation if I do not tell the employer about my disability during the hiring process?
- Does the employer have the right to require documentation of my disability when I ask for reasonable accommodation?
- May the employer require me to have a medical examination?
- Are there accommodations the employer is not required to provide?
- When is an accommodation not "reasonable?"
- Must the employer provide reasonable accommodation in attendance?
- Which employers are covered by the ADA?
- What employment activities are covered by the ADA?
- Do I have rights as a person with a disability under the ADA?
- Is my psychiatric condition covered by the ADA?
- Does the ADA include drug addiction as a protected disability?
- Which conditions are not considered disabilities by the ADA?
- May the employer discriminate if people believe my condition is dangerous?
- Does the ADA protect me if I have no disability but I am associated with someone who does?
- Does the ADA protect my confidentiality?
- Are there exceptions to ADA confidentiality protections?
- Can the employer discipline me for behaviors or conduct that is related to my disability?
Ohio is an employment-at-will state, which allows the employer to hire, to fire and to refuse to hire for almost any reason. However, if you are qualified to perform the essential functions of the job, the employer may not refuse to hire you only because you have a disability.
Just as the employer may not refuse to hire you only because you have a disability, the employer is not required to hire you only because you have a disability. You must be able to perform the essential functions of the job, either with or without reasonable accommodation for your disability that will allow you to perform the job.
Reasonable accommodation is a modification or an adjustment to a job or work environment that will enable a qualified applicant or employee with a disability to participate in the application process and to perform essential job functions. Reasonable accommodation includes changes in the employer's policies or procedures and other modifications to assure equal employment opportunities for people with disabilities.
Examples of reasonable accommodation include adapting a work station; providing a quiet work space; purchasing adapted equipment; modifying existing equipment; restructuring a job description; modifying a work schedule; and reassigning to another, vacant position which you are qualified to fill.
Employee reassignment and some other accommodations may be subject to a seniority policy or a collective bargaining agreement. If the employer's workers are unionized, DRO recommends that you consult the union representative. DRO recommends that you consult a lawyer.
The employer must make reasonable accommodation for your disability in the work place and work duties to enable you to perform the essential functions of the job. However, the employer is only required to make reasonable accommodation if the employer knows that you need reasonable accommodation.
The employer may not ask any questions about your disability on job applications or during job interviews. The employer must define the essential functions and conditions of the job and then ask the applicant about his or her qualifications to perform the job. The employer may ask questions about job history, gaps in employment and other disability-neutral questions.
Will I lose my right to reasonable accommodation if I do not tell the employer about my disability during the hiring process?
You have the right to reasonable accommodation for your disability at any time you choose to ask. You may tell the employer about your disability after many years on the job, and you will have the right to reasonable accommodation at that time.
Does the employer have the right to require documentation of my disability when I ask for reasonable accommodation?
Once you are hired and begin the job, the employer may ask you questions that are related to the job and necessary to conduct business. When you ask for reasonable accommodation, the employer may require information to establish your disability and your need for reasonable accommodation.
The employer may not require a medical examination during the application and hiring process. After offering you the job, the employer may require a medical examination, but only the same medical examination required of every new-hire in the same job category. After the employer makes you a conditional job offer, there are no limits on inquiries about your disability. However, the employer may only withdraw a job offer if you cannot perform the essential functions of the job, with reasonable accommodation if necessary.
The employer must make only "reasonable" accommodation for your disability. The employer is not required to make accommodation that will lower quality or quantity standards. The employer is not required to provide personal use items such as glasses or hearing aids or to create a new job position for you if you are not qualified for the position applied for.
An accommodation is beyond "reasonable" if it would impose "undue hardship" on the business. Reasonableness and undue hardship depend upon the nature and cost of the accommodation in relation to the nature, size, resources and structure of the employer's business. What may be an undue hardship for one employer to provide may be a reasonable accommodation for another employer to provide. In general, a large business would be required to make greater effort or spend more money to accommodate your disability than a small business.
Regular and predictable attendance is commonly viewed as a minimum standard of performance, although the employer may be required to tolerate some additional absences for your treatment needs, such as short-term hospitalization. The Family and Medical Leave Act (FMLA) and state workers' compensation laws provide additional rights or restrictions on job leave and absences.
The Americans with Disabilities Act (ADA) covers private employers, state and local government employers, employment agencies and labor unions with 15 or more employees. Federal employees and employees of federal contractors may be covered under a different law, the Rehabilitation Act of 1973. The Rehabilitation Act has
The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions and privileges of employment. The ADA applies to recruitment, advertising, tenure, layoff, leave, fringe benefits and all other employment-related activities.
The ADA protects the employment rights of qualified individuals with disabilities. The ADA defines "individual with a disability" in two parts, both of which must be true. (1) You must have a physical or mental impairment, which may include mental illnesses, and (2) your impairment must result in a substantial limitation in one or more major life activities, such as thinking, learning, working, standing, reaching or caring for yourself. In addition, you must be "qualified," which means that you can perform the essential functions of the job, with or without a reasonable accommodation.
As long as your psychiatric condition meets the ADA's two-part definition of disability, you are a qualified individual with a disability with employment protections under the ADA. Not all psychiatric conditions are covered by the ADA because they are not judged to substantially limit major life activities. For example, psychiatric conditions which last only a short time or cause only minor limitations in functioning would not be covered by the ADA as disabilities.
People who use controlled substances illegally, even a prescribed drug without the required supervision of a licensed health care professional, are not considered by the ADA to have a disability. However, the ADA protects people who are currently in or have completed a supervised drug rehabilitation program and no longer use drugs illegally.
The ADA does not include as a disability gay, lesbian and bisexual orientations; sexual compulsions and disorders; compulsive gambling; kleptomania; pyromania; and psychoactive disorders that result from current illegal use of drugs. The ADA includes alcoholism among covered disabilities, but excludes drinking or alcohol impairment while working. Conditions which pose a "direct threat to health and safety" may be covered disabilities, if the threat can be eliminated by reasonable accommodation.
Employment practices based on stereotypes and unfounded assumptions about disability are illegal. The employer's judgment that your condition is dangerous must be based on medical judgment and objective evidence. The employer must consider duration of the risk, nature and severity of the potential harm, likelihood that harm will occur and imminence of the harm.
The ADA prohibits employment discrimination based on your relationship or association (not necessarily family relation) with a person with a disability. The law protects you from employment discrimination based on biased assumptions that your relationship or association with a person with a disability would necessarily affect your job performance.
Any information about your disability must be stored on separate forms and treated as a confidential medical record. The record must be stored separately from other personnel files and accessible only to designated staff persons.
There are five exceptions to the confidentiality requirements:
- Supervisors and managers may be informed about necessary work restrictions and other accommodations.
- First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment, or if any special procedures are required in case of fire or other evacuations.
- Government officials should be provided access to information when investigating disability anti-discrimination compliance.
- Relevant information may be provided to workers' compensation offices.
- Relevant information may be provided to insurance companies when the company requires a medical examination to provide health or life insurance to employees.
The information should not be shared with anyone else without the explicit consent of the person with a disability.
The answer to this question will depend on the facts of the situation, but you are not protected by the law until you tell your employer that you have a disability and ask for a reasonable accommodation. If you are disciplined and it is related to your disability but you did not tell the employer about your disability, the employer can legally discipline you.