Most of my Portland business law clients know that the law protects disabled employees from discriminatory treatment. How that very general principle applies to a specific case and a specific employee can be a vexing problem even for an experienced employment law attorney. That's why it is important to practice preventative law, both for clients and lawyers.
There are federal and state laws that protect disabled workers from discrimination. The federal act is the most well known, the Americans with Disabilities Act or ADA., though Oregon statutes also apply.
Like many federal employment related laws, the ADA only applies to larger employers with fifteen or more employees. Oregon's disability laws apply to Oregon businesses with six or more employees.
State and federal law define a disabled person as someone with a physical or mental impairment that substantially limits a major life activity. Seems pretty straight-forward, right? Wrong. The case law interpreting this definition of a disabled worker is long, complex, and often seemingly contradictory.
For example, 'major life activities' can include the ability to get around, to care for oneself, to communicate, to work, and just about any creative argument a plaintiff's employment lawyer might make. What's even more tricky, and potentially frustrating for Oregon employers, is that even if someone isn't substantially limited in a major life activity, they can still be covered by disability laws if they are 'regarded as' being so impaired.
Further, temporary conditions do not qualify for coverage under federal or Oregon law. What's a temporary condition? How temporary is temporary? Good questions all, and ones that can only be answered after a thorough review of the facts and circumstances in your particular case.
Making smart employment decisions begins with the simple recognition that hiring and firing decisions should be done with care. If the decision involves a potential employee who is disabled, or claims to be disabled, that decision should be made even more conscientiously. The law protects an employer's right to terminate employees, even disabled ones, but taking care to do things correctly, and fairly, on the front end can ultimately help you avoid costly litigation that can drag the back end out for years.