New York Disability Discrimination Laws

Fair employment practices law: Employers can’t refuse to provide reasonable accommodations for employees’ and applicants’ known disabilities in connection with the job they hold or seek or their participation in training programs, unless employers can show that these accommodations would impose undue hardship on their business operations. Employers can’t ask applicants whether they need accommodations.

To be eligible for reasonable accommodations, employees and applicants must:

• have disabilities that actually interfere with their job performance, including when employees’ recovery or treatment needs interfere with their job performance if accommodations would allow them to recover or obtain treatment while maintaining employment;
• have disabilities and accommodation needs that are known or made known to employers, including when employees and applicants inform employers of their disabilities and request accommodations;
• have required job qualifications and be able to satisfactorily perform their job;
• be qualified for their job through education, skill, experience, or ability to the same extent that these qualifications are required as BFOQs for nondisabled employees and applicants; and
• be able to reasonably, satisfactorily perform the essential functions of their job, with or without accommodations.

Employers can determine satisfactory performance standards if they apply these standards evenly to all employees in the same position. Essential functions are fundamental job functions, as determined based on factors such as:

• employers’ judgment, which can be demonstrated through pre-existing, written job descriptions;
• how often these functions actually are performed by other employees in the same position;
• how many other employees are available to perform these functions in the event of job restructuring;
• how an employee’s or applicant’s inability to perform these functions directly and specifically impacts employers’ business; and
• the terms of collective bargaining agreements.

Employers must consider accommodations upon receiving requests for them or otherwise discovering that they are needed. Employers can select which reasonable accommodations to provide, so long as these accommodations meet employees’ and applicants’ needs. Employees and applicants must cooperate with employers during this process; however, they can refuse accommodations if they can perform their job in a reasonable manner without accommodations.

Reasonable accommodations are actions that allow employees or applicants with disabilities to perform their job-related activities in a reasonable manner, but don’t impose undue hardship on employers’ business. These actions can include:

• providing accessible worksites;
• making existing facilities more accessible to people with disabilities;
• acquiring or modifying equipment;
• support services for people with impaired hearing or vision;
• job restructuring;
• modified work schedules;
• adjustments to work schedules for treatment or recovery;
• reassigning employees to other available positions;
• adjusting examinations, training materials, or policies; and
• providing readers or interpreters.

Job restructuring is required as a reasonable accommodation if employees or applicants with disabilities meet the BFOQs and can satisfactorily perform their essential job functions. Employers can’t require employees or applicants with disabilities to perform nonessential functions that they can’t perform because of their disabilities.

Reasonable accommodations don’t include:

• providing for personal care needs, although personal care assistants should be accommodated when provided by employees at no cost to employers;
• providing non work-related aids, such as personal hearing aids or wheelchairs, that are employees’ own responsibility;
• creating completely unique positions that have qualifications or functions tailored to disabled employees’ and applicants’ abilities;
• accommodating behaviors that don’t meet workplace behavior standards if employers consistently apply these standards to all similarly situated employees;
• accommodating disabilities that pose a significant risk of substantial harm to employees’ or others’ health or safety if this risk can’t be eliminated or reduced through reasonable accommodations; or
• making accommodations that pose a significant risk of substantial harm to employees’ or others’ health or safety.

To determine whether disabilities or accommodations pose a significant risk of substantial harm to health or safety, employers must make an individualized assessment based on reasonable judgment. Specifically, employers must rely on current medical knowledge or the best objective information available to determine the nature, duration and severity of this risk; the probability of injury occurring; and whether reasonable accommodations would mitigate the risk.

Undue hardship means significant difficulty or expense for employers. Determining whether accommodations would impose undue hardship is based on factors such as:

• employers’ overall business size in terms of workforce size, number and type of facilities, and budget size;
• the type of employers’ business operations, including workforce composition and structure;
• the nature and cost of needed accommodations;
• how well accommodations remove disability-related impediments to performance;
• how convenient or reasonable accommodations are for employers, including how their convenience compares to other possible accommodations; and
• hardships, costs, or problems that accommodations would cause employers and other employees.

Certification requirements: Employers must clearly request any documentation from employees and applicants that is necessary to consider a known or requested need for reasonable accommodations. When considering these accommodations, employers are entitled to medical or other information that is necessary to verify the existence of employees’ and applicants’ disabilities or to consider their need for the accommodations. Employees must cooperate in providing this information.

Temporary disabilities: Employers can be required to make certain reasonable accommodations for employees with temporary disabilities. Specifically, employers might need to modify work schedules and reassign employees to another position or light duty. Determining reasonable accommodations for temporary disabilities can depend on factors such as employers’ past practice, pre-existing leave or light duty policies, and specific workplace needs; the relevant workforce’s size and flexibility; and employees’ overall attendance record. Only de minimis accommodations can be required in the areas of worksite accessibility, equipment acquisition or modification, job restructuring, and support services for employees with temporary hearing or vision impairments.

Alcoholism and drug addiction: The reasonable accommodation requirements cover alcoholism and drug addiction if employees and applicants are recovered or recovering from such and can perform their job duties like anyone else with similar skills, experience, and other qualifications. Reasonable accommodations can include allowing employees to adjust their work schedule for ongoing treatment if they maintain regular attendance and continue to perform their essential job functions.

The reasonable accommodation requirements don’t cover current illegal drug use. If employers have knowledge of such use, employees and applicants aren’t entitled to accommodations and employees can be discharged. Current illegal drug use means illegal drug use that occurred recently enough for employers to reasonably believe that such use is current or that continuing use is a real and ongoing problem. Tests to determine illegal drug use aren’t considered medical tests; if they reveal any other information about medical conditions or history, employers can’t use it against employees and applicants.

‍

Under Title I of the Americans with Disabilities Act (ADA), employers, including state and local governments, with 15 or more employees, are prohibited from discriminating against people with disabilities. Title I protects qualified individuals with disabilities in several areas, including job application procedures, hiring, firing, advancement, compensation and job training. It is also unlawful to retaliate against someone for opposing employment practices that discriminate based on disability, or for filing an ADA discrimination charge. The Office of Federal Contract Compliance Programs (OFCCP) shares enforcement authority for Title I of the ADA with the U.S. Equal Employment Opportunity Commission (EEOC), which has primary responsibility for enforcing the employment provisions of the law. (Note: Federal employees and job applicants are covered by Section 501 of the Rehabilitation Act of 1973 instead of the ADA.