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Disability Rights - Hiring or Firing an Employee

Posted on in Employment

It is unlawful for employers to discriminate in employment against qualified individuals with a disability, according to The 1990 Americans with Disabilities Act (ADA). Discrimination is outlawed by the ADA against individuals with disabilities in public accommodations, local and state government services, telecommunications and transportation.

The ADA also makes discrimination in employment unlawful in practices including:

  • Recruitment
  • Training
  • Promotions
  • Firing
  • Hiring
  • Pay
  • Job Assignments
  • Benefits
  • Leave
  • Lay Off
  • Any other activities that are employment-related

As an employer, you cannot and it is unlawful to retaliate against a qualified individual with a disability who is asserting their rights under the ADA.

 

Examples of Discrimination

When it comes to hiring or firing an employee and their disability rights, the following are some examples that could get you into some real hot water if you were to do them. Let's take a potential or existing employee with HIV as an example. If you are an employer in:

  1. Automobile Manufacturing and you refuse to hire a candidate who has HIV; that is discrimination
  2. Restaurant services and firing a waiter because you learned they had HIV; that is discrimination
  3. Airline services and offer a job to a candidate only to rescind after they test positive to HIV to your required medical exam and testing; that is discrimination
  4. Insurance services that places a cap on benefits for HIV-related complications, but not on other benefits; that is discrimination
  5. A University that fired a professor after learning they had HIV; that is discrimination

While interviewing a candidate for a job, you are not permitted to ask the applicant if they are disabled or what the severity or nature of their disability is. You can, however, ask them if they are able to perform the job duties of the position with reasonable accommodation or without. You may also ask them to demonstrate or describe how they will perform the job duties with or without reasonable accommodation.

Being an employer, you cannot require an applicant to take a medical examination before you offer them a job. You can, however, condition your job offer (after you make the offer) based on them passing the required medical exam if all new employees within that job category are required to take the exam.

You cannot reject a new employee based off information gathered about their disability that was revealed through the exam unless you reject them due to job-related issues. If a potential employee is able to perform the job functions adequately with an accommodation, you cannot refuse to hire them because of their disability.

Once you hire an employee and they start work, you cannot ask them questions about their disability or require them to take a medical exam unless they are job-related and essential for the conduct of your business.

All employers, including local and state government employers that have 15 or more employees are required to abide by this ADA law and their disability rights. For more information on hiring and firing an Employee with a disability, please contact us here at Jachimowicz Law Group.

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