Rights of Persons with Disabilities
The Montana Human Rights Act and the Americans with Disabilities Act Amendments Act (ADAAA) prohibit discrimination in employment to an applicant or employee because of a physical or mental disability. An employer may have additional obligations under the federal Family Medical Leave Act. For information regarding this law, see the U.S. Department of Labor website at www.dol.gov or call 1-866-487-9243.
Qualified persons with physical and mental disabilities:
- May not be refused an application, interview or employment because of their disability
- May not be terminated or discharged because of their disability
- Have the right to a reasonable accommodation which would allow them to perform the essential functions of their position
Who is Covered?
To be protected under the Montana Human Rights Act and the ADAAA, an applicant or employee with a disability must:
- Have a physical or mental impairment that substantially limits one or more major life activities; or
- Have a record of such an impairment; or
- Be regarded or perceived as having such an impairment; and
- Be able to perform the essential functions of the position with or without a reasonable accommodation.
Employees should notify the employer if they need an accommodation and tell the employer what modifications are needed to perform the job.
When a person is or becomes disabled, he or she may need a reasonable accommodation in order to remain active in the workforce. With an effective reasonable accommodation, an employee with a disability can perform the essential functions of the job and enjoy the same benefits and privileges of other non-disabled employees. Montana’s employers and employees need to be aware of their rights and responsibilities when it comes to the provision of reasonable accommodations. But, how do you figure out the right reasonable accommodation? The answer lies in a meaningful interactive dialogue.
An “interactive dialogue” or “interactive process” is an opportunity for the employer and the employee to have a discussion. The parties can discuss the essential functions of the job and to take a look at how a person’s disability may impact the ability to perform those functions. With this in mind, they can begin to look at different ways to address the problem. In some cases, both the disability and the type of accommodation required will be obvious. If so, an in-depth dialogue will not be necessary. In other situations, the employer may need to gather more information concerning the nature of the disability and the individual's functional limitations in order for the parties to identify an effective accommodation. Fortunately, there are extensive resources out there to assist.
The resources below discuss several key steps that the parties can take to ensure a meaningful dialogue:
- Discuss the essential functions of the job (a good job description is a great first step) or the privileges or benefits that are inaccessible;
- Discuss how the employee’s impairment impacts the ability to perform the essential functions of the job (this may require gathering more information);
- Bring ideas to the table about how to accommodate the impairment (it might be helpful to contact a neutral third party resource, such as JAN, and get their input.)
- Select and implement a reasonable accommodation; and then
- Monitor the accommodation.
It could be that the parties proceed through a good faith interactive process and realize that there is no reasonable accommodation that would allow the employee to continue with his or her employment. However, a meaningful dialogue will certainly increase the odds of finding a perfectly reasonable accommodation that will serve the interests of both parties.
Examples of Reasonable Accommodation
* Making all application processes accessible to persons with disabilities
* Making existing facilities used by employees readily accessible to and usable by employees with disabilities
* Restructuring the job; offering part-time or modified work schedules
* Reassigning the employee to vacant positions they are qualified to hold
* Acquiring or modifying equipment or devices
* Adjusting or modifying examinations or training materials or policies as appropriate
* Providing qualified readers or interpreters
Under the ADAAA, those who are “perceived” as having disabilities are protected from employment discrimination based on stereotypes, fears, or misconceptions about disability. This protection applies to decisions based on unsubstantiated concerns about productivity, safety, insurance, liability, attendance, and the costs of accommodation, accessibility, workers’ compensation costs or acceptance by co-workers and customers.
Click on a link below for more information…
Diversifying Your Workforce--A Four-Step Reference Guide to Recruiting, Hiring, & Retaining Employees with Disabilities