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To achieve our goal of keeping you informed, this blog is Part XIV and an update of our series on federal laws that apply to the issues of workplace harassment, discrimination, & retaliation in New York. In Part XIII, we covered Part II of “Whistleblowing, Retaliation Claims & Liability Standards,” recognized under the various federal laws. Accordingly, to move the discussion forward, we will hammer on “Disability-Related Protections – Definitions & Concepts,” as recognized by applicable federal laws in this blog and part XIV of the series.

Disability-Related Protections – Overview, Definitions, & Concepts Recognized under Federal Laws Applicable to Workplace Harassment, Discrimination, & Retaliation in New York.

NOTE: The information regarding the disability-related protections discussed in this and subsequent blogs under the same topic was current as of March 26, 2021.

For starters, pursuant to Section 42 U.S.C. § 12101 et seq., disability-related protections are provided in New York under the Americans with Disabilities Act (ADA).

1. Overview and Definitions of Disability under the ADA

Pursuant to Section 42 U.S.C. § 12102(1) of the ADA, it is unlawful for employers to discriminate against job applicants and employees based on disability. Under the ADA, “disability” is defined as (1) a mental or physical impairment under which one or more major activities of life are substantially limited, (2) a record of such an impairment, or (3) being regarded as having such an impairment.

2. The Concept of “Regarded as” Disability

Pursuant to Section 42 U.S.C. § 12102(3), it is provided under the ADA that to be “regarded as” having such an impairment implies that the employer has subjected an individual to an action that the ADA prohibits (for example, termination of employee or failure to hire a job applicant) because of a perceived or actual mental or physical impairment that is not transitory and minor. However, a job applicant or employee is not required to demonstrate that the employer believed that the individual’s performance of a major activity of life was substantially limited by the disability when bringing a claim alleging discrimination on the basis of solely being “regarded as” disabled. Pursuant to Section 29 C.F.R. § 1630.2(g)(1)(iii) of the ADA, minor or temporary (transitory) impairments are not included as part of the definition of “regarded as.” Nonetheless, pursuant to Sections 29 C.F.R. § 1630.9(e) and 29 C.F.R. § 1630.2(o)(4) of the ADA, employers do not have to provide reasonable accommodation to an employee who is “regarded as” having a disability.

3. The Concept of Temporary Disabilities

Under the ADA, non-disabling and temporary impairments such as influenza, appendicitis, concussions, sprained joints, and broken limbs are not generally considered disabilities. However, if they substantially limit a major activity of life, short-term impairments that last no more than six months (defined as “transitory impairments under the ADA) may qualify to be termed as disabilities under the Act.

4. Employer Obligation to Reasonably Accommodate Disabilities

Pursuant to Section 42 U.S.C. § 12112(b)(5)(A) of the ADA, unless the employer can demonstrate that an undue hardship on the business would be imposed on them by a particular hardship, employers are required to make reasonable accommodations to the known mental or physical limitations of an otherwise qualified person with a disability who is an employee or job applicant. However, it is not within employers’ obligations to provide accommodations for absenteeism attributable to alcoholism. In this regard, “reasonable accommodation” may include, but is not limited to:

  • Reassignment to a vacant position.
  • Job restructuring.
  • Modification or acquisition of devices or equipment.
  • Part-time or restructured work schedules.
  • Ensuring the accessibility of facilities to employees with disabilities.
  • Provision of qualified interpreters or readers.
  • Modification or adjustment of policies, training materials, or examinations.

In Part XV, we will move the discussion forward by hammering on “The Process of Requesting Accommodation” under federal laws applicable to workplace harassment, discrimination, & retaliation in New York.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.