Employer Responsibility to Disabled Employees

Discuss and explain responsibility of an employer to an employee with a disability. Nowadays, people with disabilities are present in all societies. Many of them are ‘hidden’ at home or in a particular institution due to social stigma, prejudice and environmental barriers which prevent them from participating productively in society. The Malaysian Disability Act (2008) defines the disable person as those who have long term problem with physical, mental, intellectual or sensory impairments; which in interaction with various barriers may hinder their effective participation in society. Nonetheless, people with disabilities are part of the community, they have the right to enjoy all the existing facilities in the country and also participate in all aspects of national development including employment in the labour market, without any discrimination. In the other hands, whether in the private or public sector, the employer must treat the applications of people with disabilities as they would for any other candidates. People with disabilities should not to be considered merely out of sympathy or to meet the requirements set by the government quota[1]. According to the Section 29 of the Malaysian Laws which under Persons with Disabilities Act 2008, which stated that the allocations and provisions for access to employment encompass the following which are the persons with disabilities shall have the right to access to employment on equal basis. Furthermore, the employer shall in fulfilling their social responsibilities endeavor to promote a more stable employment to the person with disabilities by proper evaluation of their abilities, conducting a more proper employment management and providing suitable and comfortable work environment. The Council shall, in order to promote career opportunity of persons with disabilities in the private sector, which can have an affirmative action programme to formulate appropriate policies. Apart from this, in the labour market the Council can promote opportunities for training the persons who are disabilities by giving opportunities for entrepreneurship, self employment, starting one's own business and creating opportunities to work from home, and the development of cooperatives. Lastly, for the main purpose of this section is meant that "employer" also includes the Government. In addition to the responsibilities of employer to protect the employee with disabilities, it was also had Malaysia’s Persons with Disabilities Act (PWDA)[2] 2008 which was passed on July 7, 2008. This act delineates that disabled people have the right to access to employment on equal basis with non-disabled people. Specifically, the act enacts that: the employer shall protect the rights of persons with disabilities, on equal basis with persons without disabilities, to just and favorable conditions of work, including equal opportunities and remuneration for work of equal value, safe, and healthy working conditions, protection from harassment and the redress of grievances. The enforcement of this act as such prohibits unfair discrimination against Malaysian disabled people that include refusing and failing to accept a disabled applicant as an employee. It has been a lapse of two years since the passing of this act and thus it would be worthwhile to gauge employers’ awareness of the act and to investigate whether the act works in real life and not only on paper. Moreover, another critical problems always meet by the people with disabilities is the transportation to work. The present public transportation system in the country is unfriendly and inaccessible to them. This position can be improved if employers are willing to provide them with decent accommodation or transportation to and from their workplaces. If the employer can provide the transportation to the employee with disability , it will make the employee more easy go to work. Not only provide the transportation, employer also can provide the accommodation for employee. For example, let the employee live nearby the office or shops which can let them go by themselves easily. Besides that, if an employee with disabilities are applying for a job, an employer cannot asking the employee if they are disabled or ask about the nature or severity of their disability. An employer can ask if an employee with disabilities can perform the duties of the job with or without reasonable accommodation. An employer can also ask disable employee to describe or to demonstrate how, with or without reasonable accommodation, they will perform the duties of the job with nice job. Other than that, an employer cannot require a disable employee to take a medical examination before they are offering a job. Following a job offer, only for all the employees who had enter into the job category and take the examination, then the employer shall offering a required medical examination to the employee. However, an employer cannot reject for hiring when he discovered the disability of the employee from the medical examination, unless the reasons for rejection which have clearly stated rhar have related to the job and it was a necessary conduct for the employer’s business. The employer cannot have any objection to hire the people with disabilities due to their disability if they can doing all the essential job part and function of the with an accommodation. Once the disability employee have been hired and started work, the employer cannot require that the disability employee take a medical examination or ask questions about the disability unless they are related to the job and necessary for the conduct of the employer's business. The employer may conduct voluntary medical examinations that are part of an employee health program, and may provide medical information required by State workers' compensation laws to the agencies that administer such laws. The most important things is all the medical examinations result shall be kept in private and confidential, and always maintained and put into a separate medical files. While compare to the United State, the responsibilities of employer to the employee with disabilities, it was almost same with Malaysia. In United State, it was passing the Americans with Disabilities Act (ADA)[3] in 1990, Congress try to help the disabled people to get more career. The ADA was requires employers to make reasonable accommodations to make sure that the workers with disabilities can feeling save and secure and retain in the employment. At the same time to require the employers to make a reasonable accommodations, the ADA has had a positive support on the disabled individuals in the workforce, and has raised the awareness of U.S. employers while the main purpose is reducing to occur any discrimination against the disabled individuals. In the language of the ADA, the words "accommodations" is refer that an employer is required to make and provide to disabled persons during hiring and employment. The ADA prohibits employers to have any discriminatory conduct on the basis of an employee’s disability. Employers may not limit the type of the jobs, segregate or classify the jobs in such a way because it was defined as discriminate; employer also cannot try to contract or arrange with others healthy employee to discriminate the employee with disabilities. Furthermore, employer may not utilize any discriminatory standards, or methods of administration. Others than that, employer may also cannot exclude or deny the qualified of the individuals from jobs on the basis of disability. In addition, an employer must make "reasonable accommodations which was known as mental or physical limitations of an qualified individual which with a disability."[4] So, the Congress might take their responsibilities which have to stop with this language, and allowed employers and the courts to determine what are the important steps of the "reasonable accommodation" standard requires. Instead, there would be an exception in the law if the accommodation cause "undue hardship" to the employer's business. The ADA therefore reverse an entry between the accommodations, an employee requires in order to meet the basic requirements of a certain job, and the investment and modifications an employer must make in order to accomplish those accommodations. “Undue Hardship” under the ADA which means that "significant difficulty or expense" for the employer. The factors that an employer must consider in weighing undue hardship include the nature and the cost of the accommodation. Normally, the financial resources of the business and the facility of the business would require the accommodation. The next factors is the number of workers at the business and the impact of the accommodation on the facility's resources, expenses, or operations. Overall, the employer's size, resources, nature, and type of operations which was strongly affected by the accommodation. The standards for reasonable accommodation and undue hardship are hardly to give the court to prove and identify on how to apply the accommodation uniformly. Employers are only required to accommodate the disabilities workers, meaning that an employee cannot bring an ADA claim for a condition that was unknown to the employer. Additionally, sometimes the parties will disagree on whether the condition of the disability of the employee is under the law. Quadriplegia and deafness are clearly stated as disabilities, but it was still many conditions are harder to judge. Is a sore back known as a disability? What about the poor eyesight? For the examples of the “accommodations”, the reasonable accommodations which under the law can include the jobs itself and changes to the physical work environment. The reasonable accommodations by changes to the work environment usually require to have some facilities so that they are accessible and usable for the persons with disabilities. These facilities are including installing elevators, ramps, wheel chair access doors, handrails, different lighting, different chairs, desks or computers; and realizing different configurations for furniture or machinery. Job changes must include such things as restructuring the job, modifying or shortening the work schedule, acquiring or modifying necessary equipment, transferring the employee to another vacant job, and adjusting examinations, policies and training materials.[5] Assuming the employer does not controversy the employee's disability, but the next question will always is the required accommodation. The ADA does not specify who is supposed to take the initiative responsibilities in accommodating of the employee's disability, so employers also does not know whether it's their duty or the employee's duty. These duties is to propose changes that would allow the employee to perform the job well. In otherwise, some courts will require an interactive process between the disabled individual and the employer, sometimes the employer will be taking a more affirmative role. Courts can determine the reasonableness of the accommodation by the way on a case-by-case basis. What might be mean the reasonable in one context and may not be in another context. For an instant, if a person in an office job who needed help from another employee to lift up the items which was weighing over 25 pounds, such help may be totally in amount to reasonable. Others part, if an airport baggage handler could not lift over the 25 pounds items, it could not stated as reasonably and rely on the same help. In the latter instance, the assistant would be performing a substantial portion of the individual's job. In making a "reasonableness" determination, courts will look at the essential functions of the job. If the employee cannot perform the job's essential functions, the employee is not qualified for the job.[6] The ADA protects disabled individuals during the hiring process, in the way by prohibiting employers to have any inquiring about disabilities or subjecting prospective employees to medical tests before hiring them. However, employers may only can ask about a candidate's abilities concerning to the essential of the job functions. After offering the job, the employer may require the employee to have a medical examination. Last but not least,when the duty arises, the employer is under a positive and proactive duty to take steps to remove or reduce or prevent the obstacles face as a disabled worker. No matter in Malaysia or any others countries, there confirm will have different types of act to protect the employee with disabilities. There will also have list down the responsibilities of an employer.

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[1] https://www.eeoc.gov/facts/ada17.html [2] https://www.eeoc.gov/eeoc/publications/ada18.cfm [3] https://undesadspd.org/Youth/ResourcesandPublications/YouthWithDisabilities.aspx [4] https://corporate.findlaw.com/litigation-disputes/employment-law-employer-s-duty-to-accommodate-an-employee-s.html [5] https://www.weisslawstl.com/practice-areas/employment-law-services/reasonable-accommodation-ada [6] https://www.workplacefairness.org/medicalprivacy

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