Code of Maine Rules
94 - INDEPENDENT AGENCIES
348 - MAINE HUMAN RIGHTS COMMISSION
Chapter 3 - EMPLOYMENT REGULATIONS of the MAINE HUMAN RIGHTS COMMISSION
Section 348-3-13 - PHYSICAL OR MENTAL DISABILITY DISCRIMINATION
Universal Citation: 94 ME Code Rules ยง 348-3-13
Current through 2024-38, September 18, 2024
In addition to any other unlawful practice on the basis of physical or mental disability prohibited by this chapter or the Act:
1. Discrimination prohibited
It is unlawful employment discrimination:
A.
In general. For a covered
entity to discriminate on the basis of physical or mental disability against a
qualified individual in regard to:
(1)
Recruitment, advertising, and job application procedures;
(2) Hiring, upgrading, promotion, award of
tenure, demotion, transfer, layoff, termination, right of return from layoff,
and rehiring;
(3) Rates of pay or
any other form of compensation and changes in compensation;
(4) Job assignments, job classifications,
organizational structures, position descriptions, lines of progression, and
seniority lists;
(5) Leaves of
absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of
employment, whether or not administered by the covered entity;
(7) Selection and financial support for
training, including: apprenticeships, professional meetings, conferences and
other related activities, and selection for leaves of absence to pursue
training;
(8) Activities sponsored
by a covered entity, including social and recreational programs;
and/or
(9) Any other term,
condition, or privilege of employment.
B. Limiting, segregating, and classifying.
For a covered entity to limit, segregate, or classify a job applicant or
employee in a way that adversely affects his or her employment opportunities or
status on the basis of physical or mental disability.
C.
Contractual or other
relationships
(1)
In
general. For a covered entity to participate in a contractual or other
arrangement or relationship that has the effect of subjecting the covered
entity's own qualified applicant or employee with a disability to the
discrimination prohibited by this part.
(2)
Contractual or other arrangement
defined. The phrase contractual or other arrangement or relationship
includes, but is not limited to, a relationship with an employment or referral
agency; labor union, including collective bargaining agreements; an
organization providing fringe benefits to an employee of the covered entity; or
an organization providing training and apprenticeship programs.
(3)
Application. This section
applies to a covered entity, with respect to its own applicants or employees,
whether the entity offered the contract or initiated the relationship, or
whether the entity accepted the contract or acceded to the relationship. A
covered entity is not liable for the actions of the other party or parties to
the contract which only affect that other party's employees or
applicants.
D.
Standards, criteria, or methods of administration. For a covered
entity to use standards, criteria, or methods of administration, which are not
job-related and consistent with business necessity, and:
(1) That have the effect of discrimination on
the basis of physical or mental disability; or
(2) That perpetuate the discrimination of
others who are subject to common administrative control.
E.
Not making reasonable
accommodation
(1) For a covered entity
not to make reasonable accommodation to the known physical or mental
limitations of an otherwise qualified applicant or employee with a disability,
unless such covered entity can demonstrate that the accommodation would impose
an undue hardship on the operation of its business.
(2) For a covered entity to deny employment
opportunities to an otherwise qualified job applicant or employee with a
disability based on the need of such covered entity to make reasonable
accommodation to such individual's physical or mental impairments.
(3) An individual with a physical or mental
disability is not required to accept an accommodation, aid, service,
opportunity or benefit which such qualified individual chooses not to accept.
However, if such individual rejects a reasonable accommodation, aid, service,
opportunity or benefit that is necessary to enable the individual to perform
the essential functions of the position held or desired, and cannot, as a
result of that rejection, perform the essential functions of the position, the
individual will not be considered qualified.
(4) A covered entity is required, absent
undue hardship, to provide a reasonable accommodation to an otherwise qualified
individual who meets the definition of physical or mental disability under the
"actual disability" prong (5 M.R.S. §4553- A(1)(A, B)), or "record of"
prong (5 M.R.S. §4553- A(1)(C)), but is not required
to provide a reasonable accommodation to an individual who meets the definition
of physical or mental disability solely under the "regarded as" prong (5 M.R.S.
§4553-
A(1)(D)).
F.
Qualification standards, tests, and other selection criteria
(1)
In general. For a covered
entity to use qualification standards, employment tests or other selection
criteria that screen out or tend to screen out an individual with a physical or
mental disability or a class of individuals with disabilities, on the basis of
physical or mental disability, unless the standard, test, or other selection
criteria, as used by the covered entity, is shown to be job related for the
position in question and is consistent with business necessity.
(2)
Qualification standards and tests
related to uncorrected vision. A covered entity shall not use
qualification standards, employment tests, or other selection criteria based on
an individual's uncorrected vision unless the standard, test, or other
selection criterion, as used by the covered entity, is shown to be job related
for the position in question and is consistent with business necessity. An
individual challenging a covered entity's application of a qualification
standard, test, or other criterion based on uncorrected vision need not be a
person with a physical or mental disability, but must be adversely affected by
the application of the standard, test, or other criterion.
G.
Administration of tests. For
a covered entity to fail to select and administer tests concerning employment
in the most effective manner to ensure that, when a test is administered to a
job applicant or employee who has a physical or mental disability that impairs
sensory, manual or speaking skills, the test results accurately reflect the
skills, aptitude, or whatever other factor of the applicant or employee that
the test purports to measure, rather than reflecting the impaired sensory,
manual, or speaking skills of such employee or applicant (except where such
skills are the factors that the test purports to measure).
2. Prohibited medical examinations and inquiries
A.
Pre-employment
examination or inquiry. Except as permitted by subsection (3) of this
section, it is unlawful for a covered entity to conduct a medical examination
of an applicant or to make inquiries as to whether an applicant is an
individual with a physical or mental disability or as to the nature or severity
of such physical or mental disability.
B.
Examination or inquiry of
employees. Except as permitted by subsection (3) of this section, it is
unlawful for a covered entity to require a medical examination of an employee
or to make inquiries as to whether an employee is an individual with a physical
or mental disability or as to the nature or severity of such physical or mental
disability.
3. Medical examinations and inquiries specifically permitted
A.
Acceptable pre-employment
inquiry. A covered entity may make pre-employment inquiries into the
ability of an applicant to perform job-related functions, and/or may ask an
applicant to describe or to demonstrate how, with or without reasonable
accommodation, the applicant will be able to perform job-related
functions.
B.
Employment
entrance examination. A covered entity may require a medical examination
(and/or inquiry) after making an offer of employment to a job applicant and
before the applicant begins his or her employment duties, and may condition an
offer of employment on the results of such examination (and/or inquiry), if all
entering employees in the same job category are subjected to such an
examination (and/or inquiry) regardless of physical or mental disability.
(1) Information obtained under paragraph (B)
of this subsection regarding the medical condition or history of the applicant
shall be collected and maintained on separate forms and in separate medical
files and be treated as a confidential medical record, except that:
(a) Supervisors and managers may be informed
regarding necessary restrictions on the work or duties of the employee and
necessary accommodations;
(b) First
aid and safety personnel may be informed, when appropriate, if the physical or
mental disability might require emergency treatment; and
(c) Government officials investigating
compliance with this part shall be provided relevant information on
request.
(2) The results
of such examination shall not be used for any purpose inconsistent with this
chapter or the Act.
(3) Medical
examinations conducted in accordance with paragraph (B) of this subsection do
not have to be job-related and consistent with business necessity. However, if
certain criteria are used to screen out an employee or employees with physical
or mental disabilities as a result of such an examination or inquiry, the
exclusionary criteria must be job-related and consistent with business
necessity, and performance of the essential job functions cannot be
accomplished with reasonable accommodation as required in this part.
C.
Examination of
employees. A covered entity may require a medical examination (and/or
inquiry) of an employee that is job-related and consistent with business
necessity. A covered entity may make inquiries into the ability of an employee
to perform job-related functions.
(1)
Information obtained under paragraph (C) of this subsection regarding the
medical condition or history of any employee shall be collected and maintained
on separate forms and in separate medical files and be treated as a
confidential medical record, except that:
(a)
Supervisors and managers may be informed regarding necessary restrictions on
the work or duties of the employee and necessary accommodations;
(b) First aid and safety personnel may be
informed, when appropriate, if the physical or mental disability might require
emergency treatment; and
(c)
Government officials investigating compliance with this part shall be provided
relevant information on request.
(2) Information obtained under paragraph (C)
of this subsection regarding the medical condition or history of any employee
shall not be used for any purpose inconsistent with this chapter or the
Act.
D.
Other
acceptable examinations and inquiries. A covered entity may conduct
voluntary medical examinations and activities, including voluntary medical
histories, which are part of an employee health program available to employees
at the work site.
(1) Information obtained
under paragraph (D) of this subsection regarding the medical condition or
history of any employee shall be collected and maintained on separate forms and
in separate medical files and be treated as a confidential medical record,
except that:
(a) Supervisors and managers may
be informed regarding necessary restrictions on the work or duties of the
employee and necessary accommodations;
(b) First aid and safety personnel may be
informed, when appropriate, if the physical or mental disability might require
emergency treatment; and
(c)
Government officials investigating compliance with this part shall be provided
relevant information on request.
(2) Information obtained under paragraph (D)
of this subsection regarding the medical condition or history of any employee
shall not be used for any purpose inconsistent with this chapter or the
Act.
E. When a covered
entity is taking remedial action to correct the effects of past discrimination,
when a covered entity is taking voluntary action to overcome the effects of
conditions that, in the past, resulted in limited employment opportunities for
individuals with physical or mental disabilities or when a covered entity is
taking other affirmative action, covered entity may ask applicants to what
extent they have a physical or mental disability, provided that:
(1) The covered entity states clearly on any
written questionnaire used for this purpose or makes clear orally if no written
questionnaire is used that the information requested is intended for use solely
in connection with its remedial action obligations or its voluntary or
affirmative action efforts; and
(2)
The covered entity states clearly that the information is being requested on a
voluntary basis, that it will be kept confidential as provided in subparagraph
(B)(1) of this subsection, that refusal to provide it will not subject the
applicant or employee to any adverse treatment and that it will be used only in
accordance with this chapter and the Act.
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