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Advocate’s View: Part 2: Accommodations for smaller employers

Laurie A. Giordano

Laurie A. Giordano

This is part 2 of a 2-part column. The first part was published in Thursday’s edition.

Smaller employers not covered by the Family and Medical Leave Act are not required to provide the same protected unpaid leave. However, other statutes and protections may be implicated, including an employer handbook or policies. Furthermore, New York Executive Law § 291 (commonly referred to as the “Human Rights Laws”) provides for the right “to obtain employment without discrimination because of … disability …”

Further, § 296 (3) provides that it is an unlawful discriminatory practice for an employer to refuse to provide reasonable accommodations to the known disabilities of an employee. In order for an employer to be subject to the Human Rights Laws it must have at least 4 employees, N.Y. Exec. Law § 292 (5).

New York’s Human Rights Laws define the term “disability” to mean: “(a) physical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition regarded by others as such an impairment, provided however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities in the job or occupation sought or held,” N.Y. Exec. Law § 292 (21).

“The term reasonable accommodation means actions taken which permit an employee … to perform in a reasonable manner the activities involved in the job or occupation sought or held …” N.Y. Exec. Law § 292 (21-e).

Additionally, when a work accommodation is requested by an employee, the Americans with Disabilities Act may be implicated. According to the U.S. Department of Labor website:

The ADA is one of America’s most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life — to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services. Modeled after the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin — and Section 504 of the Rehabilitation Act of 1973 — the ADA is an ‘equal opportunity’ law for people with disabilities. Enforcement of the ADA against employers is governed by the Equal Employment Opportunity Commission.

Title I of the ADA provides that it with apply to employers (including state and local governments and employment agencies and labor organizations) with 15 or more employees, 29 C.F.R. § 1630.2 (e). To be protected by the ADA, the employee must have a disability, which is defined by the ADA regulations as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment, 29 C.F.R. § 1630.2 (g). The ADA does not specifically name all of the impairments that are covered. An employee with a qualifying injury has the right to request a reasonable accommodation for the hiring process and on the job. The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”), 29 C.F.R. § 1630.2 (p) and 1630.9.

A reasonable accommodation is any change or adjustment to a job, the work environment, or the way things usually are done that would allow you to apply for a job, perform job functions, or enjoy equal access to benefits available to other individuals in the workplace. 29 C.F.R. § 1630.2 (o). There are many types of things that may help people with disabilities work successfully. Some of the most common types of accommodations include:

• physical changes, such as installing a ramp or modifying a workspace or restroom;

• sign language interpreters for people who are deaf or readers for people who are blind;

• providing a quieter workspace or making other changes to reduce noisy distractions for someone with a mental disability;

• training and other written materials in an accessible format, such as in Braille, on audio tape, or on computer disk;

• TTYs for use with telephones by people who are deaf, and hardware and software that make computers accessible to people with vision impairments or who have difficulty using their hands; and

• time off for someone who needs treatment for a disability.

An employee has to request the accommodation and need only advise the employer that he or she needs an adjustment or change because of the disability. He or she does not need to complete any special forms or use technical language to do this. For example, according to the U.S. Department of Labor website, if an employee uses a wheelchair and it does not fit under his or her desk at work, he or she should tell the supervisor as it is a request for a reasonable accommodation. Further, it states that a doctor’s note requesting time off due to a disability or stating that you can work with certain restrictions is also a request for a reasonable accommodation.

The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability, 29 C.F.R. § 1630.10, et seq. For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer, 29 C.F.R. § 1630.13. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability), 29 C.F.R. § 1630.13. An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation, 29 C.F.R. § 1630.14.

After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam, 29 C.F.R. § 1630.14 (c). However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer’s business, 29 C.F.R. § 1630.14 (c)(2). The employer cannot refuse to hire you because of your disability if you can perform the essential functions of the job with an accommodation.

Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.

Thus, when a disability-related inquiry or medical examination of an employee is “job-related and consistent with business necessity” it may be permitted, 42 U.S.C. § 12112 (d)(4) (1994); 29 C.F.R. § 1630.14 (c) (1996). This requirement may be met when an employer has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.

Thus, for example, inquiries or medical examinations are permitted if they follow-up on a request for reasonable accommodation when the need for accommodation is not obvious, or if they address reasonable concerns about whether an individual is fit to perform essential functions of his/her position. In addition, inquiries or examinations are permitted if they are required by another Federal law or regulation, 29 C.F.R. § 1630.15 (e) (1996) (“It may be a defense to a charge of discrimination … that a challenged action is required or necessitated by another Federal law or regulation. …”).

In these situations, the inquiries or examinations must not exceed the scope of the specific medical condition and its effect on the employee’s ability, with or without reasonable accommodation, to perform essential job functions or to work without posing a direct threat.

As a side note, the ADA requires that employers keep all medical records and information confidential and in separate medical files. Of further note, a family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of an individual with a disability, Beck v. Univ. of Wis., 75 F.3d 1130 (7th Cir. 1996) (assuming, without discussion, that a doctor’s note requesting reasonable accommodation on behalf of his patient triggered the reasonable accommodation process).

Helpful information to employees, employers and medical providers are available on the U.S. Equal Employment Opportunity Commission website found at

Laurie A. Giordano is a founding partner of the Rochester litigation law firm of Leclair Korona Giordano Cole LLP. She concentrates her practice in the areas of commercial and personal injury litigation, as well as insurance law. She can be reached at or through the firm’s website at