Current through Register Vol. 46, No. 12, March 20, 2024
(a) Reasonable accommodation.
(1) Reasonable accommodation is defined in
the Human Rights Law at section 292.21 -e, as follows:
The term "reasonable accommodation" means actions taken which
permit an employee, prospective employee or member with a disability to perform
in a reasonable manner the activities involved in the job or occupation sought
or held and include, but are not limited to, provision of an accessible
worksite, acquisition or modification of equipment, support services for
persons with impaired hearing or vision, job restructuring and modified work
schedules; provided, however, that such actions do not impose an undue hardship
on the business, program or enterprise of the entity from which action is
requested.
(2) Reasonable
accommodations may include, but are not limited to: making existing facilities
more readily accessible to individuals with disabilities; acquisition or
modification of equipment; job restructuring; modified work schedules;
adjustments to work schedule for treatment or recovery; reassignment to an
available position; adjustment of examinations, training materials or policies;
providing readers or interpreters.
(3) Reasonable accommodation does not include
among other things: providing for personal care needs, such as a personal care
assistant, although such a personal care assistant should be accommodated where
provided by the employee at no cost to the employer; providing non-work-related
aids, such as a personal hearing aid or wheelchair, which are the employee's
own responsibility.
(b)
Determination of reasonableness.
(1) Whether
an accommodation that has been requested or is under consideration is a
reasonable accommodation required by the Human Rights Law will turn on a
balancing of the following factors:
(i)
efficacy or benefit provided by the accommodation toward removing the
impediments to performance caused by the disability;
(ii) convenience or reasonableness of the
accommodation for the employer, including its comparative convenience as
opposed to other possible accommodations; and
(iii) the hardships, costs, or problems it
will cause for the employer, including those that may be caused for other
employees.
(2)
Accommodations that pose an undue hardship on the employer will not be
required. Undue hardship means significant difficulty or expense to the
employer. In determining whether an accommodation would result in undue
hardship, consideration will be given to any relevant factor. Relevant factors
can include, but are not necessarily limited to, those set forth in the Human
Rights Law, at section 296.3(b):
(i) the
overall size of the business, program or enterprise with respect to the number
of employees, number and type of facilities, and size of budget;
(ii) the type of operation which the
business, program or enterprise is engaged in, including the composition and
structure of the workforce; and
(iii) the nature and cost of the
accommodation needed, including consideration of any money available from other
sources to assist the employer in paying the cost.
(c) Covered disabilities.
(1) The Human Rights Law protects from
discrimination those individuals with disabilities which, with or without
reasonable accommodation, do not prevent the individual from performing the
duties of the job in a reasonable manner. The definition of disability in the
Human Rights Law is more comprehensive than that under Federal law in that it
covers many conditions that have been found to be not a disability under the
Federal Americans with Disabilities Act.
(2) The term disability is defined in the
Human Rights Law at section 292.21 to mean:
(i) a physical, mental or medical 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;
(ii) a record of such an impairment;
or
(iii) a condition regarded by
others as such an impairment. With regard to employment, the term is limited to
disabilities which, upon the provision of reasonable accommodations, do not
prevent the complainant from performing in a reasonable manner the activities
involved in the job or occupation sought or held.
(3) Not every disability covered by the Human
Rights Law will require the consideration of reasonable accommodations. Only
those disabilities which actually impede, as a matter of fact, the individual
in performing the job will give rise to a consideration of accommodation. This
is understood to include those situations in which the job impedes the
individual's recovery or ability to obtain treatment, and accommodation can
make recovery or treatment possible while the individual continues to be
employed.
(d) Who is
entitled to a reasonable accommodation.
(1) To
be entitled to the protection of the Human Rights Law, the disabled individual
must have the requisite job qualifications as well as be able to satisfactorily
perform in the job.
(i) The disabled
individual must be otherwise qualified for the job by education, skill,
experience, ability, etc., to the same extent that such education, skill,
experience, ability, etc., are required as bona fide job qualifications for
nondisabled applicants or employees. See further, paragraph (f)(4) of this
section.
(ii) The disabled
individual must be able, with or without accommodation, to attain reasonable
performance. Reasonable performance is not perfect performance or performance
unaffected by the disability, but reasonable job performance, reasonably
meeting the employer's needs to achieve its business goals. See further,
paragraphs (f)(1)-(3) of this section.
(2) To be entitled to a reasonable
accommodation, the individual must meet the qualification and performance
standards set forth in paragraph (1) of this subdivision, and must have a
disability and a need for an accommodation which are known, or are made known,
to the employer.
(e)
Circumstances giving rise to the requirement that the employer consider
reasonable accommodation, in accordance with the factors set forth in
subdivision (b) of this section.
(1)
Reasonable accommodation must be considered where the disability and need for
accommodation are known to the employer.
(2) Reasonable accommodation must be
considered when a qualified applicant or employee with a disability informs the
employer of the disability (if the employer does not already know of its
existence) and requests an accommodation.
(3) Reasonable accommodation must be
considered when a current employee with a disability informs the employer of
the disability (if the employer does not already know of its existence) and
requests an accommodation, even if there has been no change in the employee's
medical condition.
(f)
Ability to reasonably perform the activities involved in the job or occupation;
job restructuring.
(1) Ability to reasonably
perform the activities involved in the job or occupation means the ability,
with or without accommodation, to satisfactorily perform the essential
functions of the job or occupation. See further, subparagraph (d)(1)(ii) of
this section.
(2) Satisfactory
performance means minimum acceptable performance of the essential functions of
the job as established by the employer. The employer's judgment as to what is
minimum acceptable performance will not be second-guessed, so long as standards
for performance are applied equivalently to all employees in the same position.
Such standards for satisfactory performance may include minimum productivity
standards or quotas.
(3) Essential
functions are those fundamental to the position; a function is essential if not
performing that function would fundamentally change the job or occupation for
which the position exists. What is an essential function is a factual question
to be resolved by all relevant evidence. Evidence for determining the essential
functions of a particular position would include, but would not be limited to,
the following:
(i) the employer's judgment as
to which functions are essential, particularly where so indicated in a
pre-existing written job description;
(ii) how often the function is actually
performed by other employees in the position;
(iii) how many other employees are available
to whom the function could be reallocated by job restructuring;
(iv) the direct and specific consequences to
the employer's business if the function is not performed by the particular
disabled individual;
(v) the terms
of a collective bargaining agreement. (Labor organizations are also required to
reasonably accommodate the disabilities of a member, pursuant to section
296.3.)
(4) When an
employer fills a position with a specific purpose of acquiring special ability
or expertise (for example: technical expertise, foreign language skill,
physical strength in a firefighter), even if the amount of time actually spent
on the job using the special ability or expertise is small, this ability or
expertise is a bona fide qualification for the job. See further, subparagraph
(d)(1)(i) of this section.
(5) As
is true in any area covered by the Human Rights Law, the employer may hire the
applicant who is most qualified with regard to the bona fide job
qualifications, and is not required to hire a disabled applicant simply because
the applicant meets the minimum job qualifications if there are other more
qualified applicants.
(6) The Human
Rights Law does not require, as a reasonable accommodation in the form of job
restructuring, the creation of a completely unique position with either
qualifications or functions tailored to the disabled individual's
abilities.
(7) Reasonable
accommodation, in the form of job restructuring, is required if a disabled
individual meets the bona fide job qualifications, and can satisfactorily
perform the essential functions of the position; the duties that the disabled
individual cannot perform due to the disability, and that are not essential to
the position, must not be required of the disabled individual.
(g) Safety concerns; objectionable
behaviors.
(1) The Human Rights Law does not
require accommodation of behaviors that do not meet the employer's workplace
behavior standards that are consistently applied to all similarly situated
employees, even if these behaviors are caused by a disability. This would
include, but not be limited to:
(i) dress
codes, grooming standards and time and attendance policy, though reasonable and
necessary deviations must be allowed as accommodations;
(ii) conduct standards, including those which
prohibit aggressive or threatening behavior;
(iii) discipline for theft of company
property by a kleptomaniac; and
(iv) discipline for intoxication or
impairment on the job by an alcoholic.
(2) Reasonable accommodation is not required
where the disability or the accommodation itself poses a direct threat.
(i) Direct threat means a significant risk of
substantial harm to the health or safety of the employee or others that cannot
be eliminated or reduced by reasonable accommodation.
(ii) In determining whether a direct threat
exists, the employer must make an individualized assessment, based on
reasonable judgment that relies on current medical knowledge or on the best
available objective information, to ascertain: the nature, duration, and
severity of the risk; the probability that the potential injury will actually
occur; and whether reasonable accommodations, such as modification of policies,
practices, or procedures, will mitigate the risk.
(iii) Some jobs may have a bona fide
classification as safety sensitive, such as, for example, vehicle operators or
persons who work with children. Heightened consideration of direct threat is to
be encouraged in bona fide safety sensitive jobs.
(h) Drug addiction and alcoholism.
(1) Alcoholism and drug addiction are
diseases. However, an individual who is currently using drugs illegally (see
paragraph [4] of this subdivision), is not protected in this regard by the
Human Rights Law. The law does protect an individual who is a
recovered/recovering alcoholic or drug addict.
(2) Adjustments to the work schedule, where
needed to allow for ongoing treatment, must be allowed as an accommodation
where reasonable, if the individual is still able to perform the essential
functions of the job including predictable and regular attendance.
(3) The recovered/recovering alcoholic or
drug addict should be expected to perform job tasks just as anyone else with
similar skills, experience and background.
(4) Where the employer has knowledge of the
current illegal use of drugs, the employee is not entitled by law to
accommodation, and may be terminated.
(i)
Current illegal use of drugs means illegal use of drugs that occurred recently
enough to justify a reasonable belief that a person's drug use is current or
that continuing use is a real and ongoing problem.
(ii) In determining whether recent use is
enough to justify a reasonable belief in current use, the individual's
successful participation in a program for rehabilitation or recovery since the
recent use is relevant.
(5) Employers are encouraged, where the
employer knows of current illegal use of drugs, or where job performance of an
alcoholic or drug addict deteriorates to below acceptable standards, to utilize
the practice of leave of absence and required attendance at a rehabilitation
program, along with a last chance agreement requiring acceptable performance
and attendance upon return. If an employee denies the problem and refuses the
leave, treatment and last chance agreement, the employee may be terminated or
disciplined for the documented performance problems.
(6) Drug testing.
(i) A test to determine the illegal use of
drugs is not to be considered a medical test.
(ii) Nothing in these regulations is to be
construed to encourage, prohibit, or authorize the conducting of drug tests for
the illegal use of drugs by job applicants or employees, or the making of
employment decisions based on the test results.
(iii) Nothing in these regulations is to be
construed to encourage, prohibit, restrict or authorize the otherwise lawful
exercise by entities subject to the jurisdiction of the United States
Department of Transportation, of authority to test applicants for or employees
in safety sensitive positions for the illegal use of drugs or for on-duty
impairment by alcohol, or to remove persons who test positive from safety
sensitive duties.
(iv) Any
information regarding the medical condition or history of any applicant or
employee obtained from a drug test, except information regarding illegal use of
drugs, must be kept confidential, and may not be used in any way to the
disadvantage of the applicant or employee.
(i) Temporary disabilities.
(1) A current employee experiencing a
temporary disability is protected by the Human Rights Law where the individual
will be able to satisfactorily perform the duties of the job after a reasonable
accommodation in the form of a reasonable time for recovery.
(2) The Human Rights Law requires no more
than de minimis accommodations for temporary disabilities in the areas of
worksite accessibility, acquisition or modification of equipment, job
restructuring, or support services for persons with temporarily impaired
hearing or vision.
(3) The Human
Rights Law may require reasonable accommodation of temporary disabilities in
the areas of modified work schedules, reassignment to an available position or
available light duty, or adjustments to work schedules for recovery. The
employer's past practice, pre-existing policies regarding leave time and/or
light duty, specific workplace needs, the size and flexibility of the relevant
workforce, and the employee's overall attendance record will be important
factors in determining reasonable accommodation in this context.
(j) Rights and duties of the
employer.
(1) The employer must not make
pre-employment inquiries with regard to the existence of a disability or need
for accommodation. The employer should provide information to applicants and
new employees as to their rights with regard to reasonable accommodation of
disability, and as to procedures to be followed in requesting reasonable
accommodation.
(2) The employer
should advise all current employees on a regular basis as to their rights with
regard to reasonable accommodation of disability, and as to procedures to be
followed in requesting reasonable accommodation.
(3) The employer has the duty to reasonably
accommodate known disabilities, where the need for the accommodation is
known.
(4) The employer has a duty
to move forward to consider accommodation once the need for accommodation is
known or requested. The employer has the duty to clearly request from the
applicant or employee any documentation that is needed.
(5) Once an accommodation is under
consideration, the employer has the right to medical or other information that
is necessary to verify the existence of the disability or that is necessary for
consideration of the accommodation. The employer must maintain the
confidentiality of individuals' medical information.
(6) The employer has the right to select
which reasonable accommodation will be provided, so long as it is effective in
meeting the need.
(7) It is
recommended that the employer have a written policy and procedure for
reasonable accommodation of disability. A sample procedure is available from
the division.
(k) Rights
and duties of the employee.
(1) The employee
must make the disability and need for accommodation known to the
employer.
(2) An employee with a
disability has a right to request an accommodation at any time, even if his/her
medical condition has not changed.
(3) The employee must cooperate with the
employer in the consideration and implementation of the requested reasonable
accommodation.
(4) The employee
must cooperate in providing medical or other information that is necessary to
verify the existence of the disability or that is necessary for consideration
of the accommodation. The employee has a right to have his/her medical
information kept confidential.
(5)
The employee has the right to refuse an accommodation despite the existence of
a disability, if the employee can perform the job in a reasonable manner
without the accommodation.