Employment: Disability, and Service Animals

The Americans with Disability Act is an important piece of civil rights legislation that prohibits discrimination based on a disability. There have been serval amendments of the ADA, and Michigan has its own civil rights legislation that also provides protections for disability and other classes.

Title I — Employment
In an employment setting, disabled persons may face discrimination over the type of disability they have as well as with their ability to have a service animal. The ADA, Elliot-Larson Civil Rights Act of Michigan, and the Persons with Disabilities Civil Rights Act, and others offer protection over disabled employees (with certain exceptions).

Here are few short questions that may settle some questions for employers as well as employees. Our answers are generalities as there are numerous exceptions and procedures; for example the CFR is constantly evolving and implements the statutes in a more digestible fashion.

May an employer ask whether or not I am disabled before a job offer has been made?
No, but an employer can ask whether or not you can perform the duties of your job with or without a reasonable accommodation (see 42 USC 12112(d)(2))

May an employer ask whether or not I am disabled AFTER a conditional job offer has been made?
Yes, provided all entering employees are subject to such an examination (see 42 USC 12112(d)(3)).

May an employer ask job related inquiries as to the nature of a disability?
Yes, provided such inquiries are shown to be job related and consistent with business necessity (see 42 USC 12112(d)(4)).

What is a reasonable accommodation?
The term reasonable accommodation generally includes making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and job restructuring, acquisition or modification of equipment, and other accommodations for individuals with disabilities (see full definition at 42 USC 12111(9)); the general caveat to reasonable accommodation comes down to whether or not there is an undue hardship on the employer (see 42 USC 12111(10) and 12112(b)). And where such action would otherwise be discrimination by an employer for failure to provide a reasonable accommodation (see 42 USC 12112(b)(5)).

When do I need to tell an employer I am disabled?
If you believe you need a reasonable accommodation (during the application process or for your employment), it is generally on the employee to tell the employer of your physical or mental limitations (see 42 USC 12112(b)(4) and (5)), it may be sufficient to say categorical disabilities such as “anxiety disorder” or “mobility disability”  if you do not want to tell your employer about your specific disability.

However, when the disability or accommodation is not an obvious one, the employer may ask the disabled person for reasonable documentation about their disability and functional limitations (see  29 C.F.R. pt. 1630 app. 1630.9 (1997); see also EEOC Enforcement Guidance).

After requesting a reasonable accommodation what may an employer ask about my disability?
The employer is entitled to know that you have a covered disability for which you need a reasonable accommodation. Your employer may ask for your specific and reasonable accommodation in writing and to generally describe your condition and how it affects your work, but may not refuse your initial request. Without making such a request the employer wouldn’t know what accommodation you need to be able to perform your job and whether or not they can assess if such accommodation is an undue burden. It may be an option to have the health care provider write a letter containing what accommodation is being requested, particularly if the disability is one you do not want disclosed.

Reasonable documentation means that the employer may require only the documentation that is needed to establish that you have an ADA disability, and that the disability necessitates a reasonable accommodation. You may be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional. See Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.

Alternatively, an employer may simply discuss with you the nature of your disability to verify the existence of an ADA disability and the need for a reasonable accommodation.

Is a reasonable accommodation ever an animal?
It is important to identify Title I from Title III. While Title III defines service animals (and creates a right), Title I does not. Therefore, an employer must assess whether or not the animal is a reasonable accommodation, and subsequently whether or not it is an undue burden.