Under what situations and conditions can you be excused from having to get vaccinated? Employee rights lawyer Jack Tuckner discusses these situations and conditions, and what an employee may need to do.
Know Your Rights: It’s a matter of human rights
and reasonable accommodations
Persons with disabling conditions are protected from being discriminated against by their employers and others in the workplace. The federal law that applies to all federal workers and to private employers with at least 15 employees is the Americans with Disabilities Act (ADA). Since its passage in 1990, it has been amended to include additional disabilities.
The ADA Definition of a Disability
The ADA defines a disability as:
- A physical or mental condition that substantially limits at least one of a person’s major life activities, such as eating, hearing, seeing, learning, standing, walking, breathing, hygiene, bending, lifting or sitting
- Having a record of such impairment
- Being regarded as having such an impairment
- Employees also are protected from discrimination for having a history of a condition — such as bipolar disorder, depression or alcoholism, or some other disability — if they no longer have it. The act covers those who were wrongfully perceived to have a condition based on an employer’s faulty assessment that they have or had a disability as well.
Labor organizations, employment agencies and joint labor-management committees are also covered under the ADA. Federal employees are protected under the Rehabilitation Act of 1973, which is largely the same as the ADA. You are also protected from discrimination based on a disability under the New York Human Rights Law that applies to employers with more than four employees.
What Impairments are Specifically Recognized as a Disability under the ADA?
The following impairments are considered disabilities under the ADA:
- Intellectual disability
- Emotional or mental illness
- AIDS and symptoms
- Cerebral palsy
- Bipolar disorder
- Loss of body parts
- Migraine headaches
- Thyroid gland disorders
- Qualified Employees with Disabilities
Disability Questions – What Can (and Cannot) be Asked in an Interview?
When applying for a position with a covered employer, you may not be asked if you have a disability, but may be asked if you can perform the essential tasks or functions of the job. You are considered to be a qualified employee if you have the skills, experience and education for that position and can perform the essential functions of the job with or without an accommodation.
If you say you can perform the job but that you need an accommodation, then the employer must provide one or demonstrate that it would present an undue hardship. Also, your impairment need not last for a specific duration or be permanent; it can be as short as 6 months, so long as it substantially limits a major life activity when its symptoms are present.
Further, even if medication, hearing aids, medical devices or therapy can mitigate your disability, these are not to be considered in determining whether you meet the definition of being impaired under the ADA. The only exception to this is if wearing ordinary eyeglasses or contact lenses satisfactorily improves your vision.
Reasonable Accommodation Requirements
A reasonable accommodation can be an assistive device, job reassignment to a vacant position for which the worker is qualified or a modification to the work environment or schedule that enables the individual to perform the essential functions of the job. This includes providing interpreters or readers and modifying training, examinations or other programs.
If the contemplated or requested accommodation constitutes an undue hardship, the employer must find one that is suitable and does not pose a hardship. The employee also has the option of paying for the cost of the accommodation or any part of it that constitutes the hardship.
Filing a Claim and Your Remedies
You can file a disability discrimination complaint with either the New York State Division of Human Rights (if filing under the state’s Human Rights Law), or with the Equal Employment Opportunity Commission (EEOC) if under Title VII of the 1964 Civil Rights Act. If under the ADA, you can file a complaint with the Department of Justice, with a federal agency that provides funding if a public entity is involved or an agency designated in Title II of the ADA.
There are deadlines in filing with each of these agencies. Our attorneys can advise and assist you on following the deadlines and in filing your complaint. If successful, your remedies may include: reinstatement; promotion; providing a denied reasonable accommodation; granting of benefits previously denied; back pay; compensation for infliction of emotional distress; attorney’s fees; and/or costs associated with filing and litigation.
If you have been or suspect you have been discriminated against regarding any terms or provisions of your employment, promptly contact our offices to speak to one of our disability discrimination attorneys for a discussion of your case and legal options.
For More Information:
- Your Rosa Parks Moment
- Manhattan Appellate Court Upholds William Sipsers Important State Division of Human rights Disability Discrimination Trial Win
- William Sipser Wins Decisive Appellate Court Disability Decision
- William Sipser Secures Far Reaching Appellate Court Disability Discrimination Victory
- Hostile Work Environment
It was great working with Jack and Deborah. Having to deal with legal matters with your employer is a stressful situation, but they made the process as seamless as possible. They clearly explained the process, kept me updated as to the progress, and always advocated on my behalf. I highly recommend working with them.
Google Review 5 Stars – J.M.