The Americans with Disabilities Act (the “ADA”) and the Nebraska Fair Employment Practice Act (“NFEPA”) seek to protect employees from being denied a job, other benefits (like raises and promotions) or from being terminated from employment just because he or she has a disability.
Employees are protected under these laws if they fall into one of three categories:
In Category One, the employee has a physical or mental impairment that substantially limits one or more major life activities.
For example, Ralph applies to work as telemarketer. Sadly, Ralph was in a car accident and lost a portion of his right leg. Ralph has a physical impairment that substantially limits his ability to walk, a major life activity. Ralph is protected under the ADA.
In Category Two, the employee has a history or a record of having a disability:
For example, Sally applies for a job as Vice President of Bank. The hiring manager knew that Sally had cancer five years earlier and decides it’s too risky to employ her. Even though Sally is in remission and cancer free, she does not get the job because she once suffered from the disease. Sally has a history/record of having had a disability and is protected by the ADA.
In Category Three, the employee is perceived by others as having a disability, but the employee actually does not have one.
For example, John has applied to work in a factory lifting heavy boxes and is perfectly healthy. The hiring manager heard a rumor that John has heart disease and decides to not hire him for that reason. Even though John never had heart disease, he was regarded as having a disability and is protected by the ADA.
Some disabilities are easily identifiable, while others are not. There are simply too many disabilities to list, and some disabilities are determined on a case-by-case basis. However, some examples of disabilities include:
- Hearing loss or Deafness
- Blindness or vision loss
- Intellectual Disabilities;
- Severe back issues
- Major depressive order
- Attention Deficit Disorder
- Sleep Apnea
I have a disability, and I was terminated from my job. Do I have a case against my employer?
If an employee is prevented from being offered a job, or if he or she is terminated from his or her existing job because of having a disability (or denied a promotion, suffered a demotion, or other adverse employment action), the employee may have a case for violation of the ADA and/or NFEPA. The first thing the employee must establish is that he or she is qualified for the job. In other words, the employee should ask whether he or she has the skills, education and training to do the job.
For example, Bob has developed a bad back after getting in a car accident a year ago. He has worked at the local laundry as a clerk for the last five years. Bob is certainly qualified to do the job based on his experience. Bob meets the criteria of being qualified.
In comparison, job applicant Wendy is looking for employment and unfortunately suffers from cancer. Wendy is an experienced bookkeeper but wants to try something different. Wendy applies to be a bus driver. Bus drivers for this employer are required to have a special license, a CDL. Wendy has never driven a bus and does not have a CDL. Wendy does not get the job and will not have a claim under the ADA because Wendy was not qualified for the bus driving job.
Do I need to be able to perform every task?
Assuming the employee has the qualifications to do the job, the employee must be able to perform the essential tasks related to the job with or without a “reasonable” accommodation. Whether a task is essential or not is determined on a case-by-case basis. Some factors include: whether the main purpose of the job is to perform the task, whether other employees can perform the task, and the time spent performing the task.
For example, as discussed above, Bob, works at the laundry. Because of his car accident a year ago, he damages his back and his doctor told him that he can only lift up to 10 lbs. Bob works alone at the laundry. The average laundry drop off is 15 pounds, but it’s never more than 20 pounds. It’s likely Bob cannot perform the essential functions of the job because he cannot meet the lifting requirement. Continuing to employ him will likely be financially burdensome, as the laundry will have to have two employees perform the job that can be accomplished by one employee.
However, if Bob’s doctor were to say instead that Bob can lift up to 10 pounds, but that Bob can lift up to 20 pounds if he wears a belt that protects his back, then Bob would be able to perform the essential task with a reasonable accommodation. If the employer were to refuse to provide a brace and/or refuse to allow him to wear it on duty, Bob likely has a claim of discrimination based on the ADA.
Another example is Wendy the experienced bookkeeper. Instead of applying for a job as a bus driver, she applies to keep the books of the bus company. Because of her cancer treatments, however, she needs to arrive at 9:30 AM, while most of the other administrative staff typically arrives at 9:00 AM. The request to come in 30 minutes late may be a reasonable accommodation.
Generally, accommodations include:
- Making facilities used by employees readily accessible to and usable by individuals with disabilities (for example, a ramp to avoid stairs);
- Restructuring a job or allowing for part-time or modified work schedules;
- Reassigning an employee to an open job; and
- Acquiring or modifying equipment or devices (for example, a special chair, or a standing desk).
What makes an accommodation reasonable?
An accommodation is reasonable if it does not cause an undue burden on the employer. Oftentimes, the courts will look to the expense of the accommodation and how disruptive the accommodation may be.
My doctor gave me restrictions, but I do not know if I can do my job?
If you have a disability and are in need of an accommodation, you should alert your employer of your request. Often, employers have special forms to fill out. Employers are obligated to work with you in an attempt to find a reasonable accommodation. This is called an interactive process.
If you are a job applicant or an employee and you believe you have been discriminated against because of a potential disability you should consult with an attorney. You may be entitled to the following:
- Having your job restored,
- Receiving lost wages,
- Having your accommodations granted, and
- Receiving other damages.