by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
& Lana L. Rupprecht, Esq. - AVP, Product Compliance
January 30, 2023
We know being a multi-state employer isn't easy, but when it comes to disability accommodations, maybe you thought you could relax a little. There's the Americans with Disabilities Act (ADA), and there's California. Nothing else to know, right? Wrong. Although we hate to see any of you lose sleep, we must tell you: Every state has its own version of the ADA. Many states put their own imprint on an employer's accommodation obligations that can trip you up. If you're not considering state-specific requirements when you manage an employee's disability accommodation request, you're creating additional risk for your organization.
State disability accommodation laws are a huge topic. So, here are just a few (non-California) highlights, organized by topic, from the increasingly scary world of state-specific disability accommodation requirements.
State Law Coverage
Many state disability discrimination laws apply to smaller employers who do not meet the ADA's 15-employee threshold. Some states, including Colorado, North Dakota, Tennessee, and Vermont, require just one employee for state law to apply. So if you are a large employer but have only one or a few employees within a state, you are probably covered by the state's disability discrimination law.
But just because you meet the employee threshold for state law coverage doesn't automatically mean you are an "employer." To figure that out, you'll have to dig into definitions. When you do, you'll find plenty of local quirks and variations. For example, South Dakota and Utah exclude the Boy Scouts of America from their definition of employer.
Be aware that some states have more than one state law addressing disability discrimination and accommodations. Rhode Island has three laws that touch on these topics. Massachusetts and Virginia also make the list of states where multiple laws may apply.
Drastically Different Definitions
Once you learn your company is covered by state law, the next step is determining what constitutes a "disability" in that particular state. Some state laws mirror, or expressly incorporate, the ADA's definitions of "disability." But approaches differ. For example:
- The Missouri Human Rights Act limits its definition of "major life activities" to those life activities that impact employability, such as communication, education, vocational training, and transportation.
- In Maine, "substantially limits a major life activity" is just one prong in a definition of disability that is expressly intended to be broader than the ADA and includes a lengthy list of conditions automatically considered "disabilities."
- Meanwhile, in New Mexico, the state human rights act prohibits discrimination based on a "serious medical condition" as well as on a physical or mental disability and requires accommodation of serious medical conditions absent undue hardship.
Some state laws require employers to provide applicants and employees with information about disabilities and the accommodation process. If you have operations in Virginia, check your employee handbook. The Virginia Human Rights Act requires employers to include information about reasonable accommodations in their handbooks, give accommodation information directly to new hires, and provide the information within 10 days if an employee discloses a disability.
Michigan takes a different approach, requiring employees to notify their employer of the need for accommodation within 182 days after the employee knew, or should have known, of the need for accommodation. Employers must post notices or use "other appropriate means" to provide employees and applicants with notice that accommodation requests must be (a) in writing; and (b) submitted within 182 days.
State law may also impact how you accommodate your employees. We're all accustomed to the importance of essential job functions and, under the ADA analysis, you don't need to remove an essential job function in order to accommodate an employee. But, if you have employees in Wisconsin, you may need to think again. Cases interpreting the Wisconsin Fair Employment Act (WFEA) have held that an employee's inability to adequately undertake job-related responsibilities is not sufficient justification to deny accommodation, and essential functions may need to be altered or reassigned to meet WFEA accommodation requirements. Let me say this one more time: in Wisconsin, you may have to remove some of an employee's essential job functions to meet your accommodation obligations.
Meanwhile, in Ohio, the opposite is true. There, a disabled individual need not be employed or trained in a job that routinely requires them to undertake a task if their performance of that task is substantially and inherently impaired by their disability. Employers must make the impairment determination on an individual basis, taking into consideration the specific job requirements, the individual disabled person's capabilities, and any reasonable accommodations.
Undue Hardship & Direct Threat
It's not just disability definitions or accommodation requirements that differ from state-to-state. Undue hardship and direct threat standards vary as well. For example, in Michigan, undue hardship determinations vary based on employer size, and hardship assessments for certain accommodation requests (such as hiring a reader or interpreter) are tied to multiples of the state's average weekly wage.
Farther west, Hawai'ian law expands on the concept of "direct threat," providing additional factors to consider when assessing risk. Employers are also required to document both the aspect of the disability and the specific risk of harm that pose the direct threat to the disabled individual or others.
While federal law is silent on service animal accommodations in the employment context, some state laws provide detail to fill that gap. And – you guessed it - there's no single standard for state service animal laws.
In Washington State, it is an unfair employment practice for an employer to:
- request that a trained dog guide (a dog trained to guide blind persons or assist the hearing impaired) or service animal (a dog or miniature horse specially trained to assist a disabled individual) be removed from the workplace unless the employer can show that the presence, behavior, or actions of the animal constitute an unreasonable risk to property or other persons; or
- remove a trained dog guide or service animal from the entire workplace because the animal presents a risk of injury or harm when in part of the workplace.
Washington law also sets forth detailed factors for assessing the risk of injury or harm posed by a dog guide or service animal and requires employers to make other efforts to reasonably accommodate a disabled employee when risk justifies removal of their dog guide or service animal from the workplace.
Colorado law gives individuals with disabilities the right to be accompanied by service animals at any place of employment and to keep the service animal with them at all times unless the employer can show undue hardship.
And, public employees in Texas are entitled to up to 10 paid days off each fiscal year to acquaint themselves with a new assistance animal.
Head Spinning? Matrix Can Help
Matrix offers review of both federal and state requirements as part of its ADA accommodation services. Can your ADA administrator say that? For more information about our accommodation services (or other leave management solutions), please contact your Matrix or Reliance Standard account manager or email us at [email protected].