94-348-3 Me. Code R. § 13

Current through 2024-51, December 18, 2024

Section 348-3-13 - PHYSICAL OR MENTAL DISABILITY DISCRIMINATION

In addition to any other unlawful practice on the basis of physical or mental disability prohibited by this chapter or the Act:

1.Discrimination prohibited

It is unlawful employment discrimination:

A.In general. For a covered entity to discriminate on the basis of physical or mental disability against a qualified individual in regard to:

(1) Recruitment, advertising, and job application procedures;

(2) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;

(3) Rates of pay or any other form of compensation and changes in compensation;

(4) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists;

(5) Leaves of absence, sick leave, or any other leave;

(6) Fringe benefits available by virtue of employment, whether or not administered by the covered entity;

(7) Selection and financial support for training, including: apprenticeships, professional meetings, conferences and other related activities, and selection for leaves of absence to pursue training;

(8) Activities sponsored by a covered entity, including social and recreational programs; and/or

(9) Any other term, condition, or privilege of employment.

B. Limiting, segregating, and classifying. For a covered entity to limit, segregate, or classify a job applicant or employee in a way that adversely affects his or her employment opportunities or status on the basis of physical or mental disability.

C.Contractual or other relationships

(1)In general. For a covered entity to participate in a contractual or other arrangement or relationship that has the effect of subjecting the covered entity's own qualified applicant or employee with a disability to the discrimination prohibited by this part.

(2)Contractual or other arrangement defined. The phrase contractual or other arrangement or relationship includes, but is not limited to, a relationship with an employment or referral agency; labor union, including collective bargaining agreements; an organization providing fringe benefits to an employee of the covered entity; or an organization providing training and apprenticeship programs.

(3)Application. This section applies to a covered entity, with respect to its own applicants or employees, whether the entity offered the contract or initiated the relationship, or whether the entity accepted the contract or acceded to the relationship. A covered entity is not liable for the actions of the other party or parties to the contract which only affect that other party's employees or applicants.

D.Standards, criteria, or methods of administration. For a covered entity to use standards, criteria, or methods of administration, which are not job-related and consistent with business necessity, and:

(1) That have the effect of discrimination on the basis of physical or mental disability; or

(2) That perpetuate the discrimination of others who are subject to common administrative control.

E.Not making reasonable accommodation

(1) For a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.

(2) For a covered entity to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such covered entity to make reasonable accommodation to such individual's physical or mental impairments.

(3) An individual with a physical or mental disability is not required to accept an accommodation, aid, service, opportunity or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified.

(4) A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of physical or mental disability under the "actual disability" prong (5 M.R.S. §4553- A(1)(A, B)), or "record of" prong (5 M.R.S. §4553- A(1)(C)), but is not required to provide a reasonable accommodation to an individual who meets the definition of physical or mental disability solely under the "regarded as" prong (5 M.R.S. §4553- A(1)(D)).

F.Qualification standards, tests, and other selection criteria

(1)In general. For a covered entity to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a physical or mental disability or a class of individuals with disabilities, on the basis of physical or mental disability, unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job related for the position in question and is consistent with business necessity.

(2)Qualification standards and tests related to uncorrected vision. A covered entity shall not use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criterion, as used by the covered entity, is shown to be job related for the position in question and is consistent with business necessity. An individual challenging a covered entity's application of a qualification standard, test, or other criterion based on uncorrected vision need not be a person with a physical or mental disability, but must be adversely affected by the application of the standard, test, or other criterion.

G.Administration of tests. For a covered entity to fail to select and administer tests concerning employment in the most effective manner to ensure that, when a test is administered to a job applicant or employee who has a physical or mental disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).

2.Prohibited medical examinations and inquiries

A.Pre-employment examination or inquiry. Except as permitted by subsection (3) of this section, it is unlawful for a covered entity to conduct a medical examination of an applicant or to make inquiries as to whether an applicant is an individual with a physical or mental disability or as to the nature or severity of such physical or mental disability.

B.Examination or inquiry of employees. Except as permitted by subsection (3) of this section, it is unlawful for a covered entity to require a medical examination of an employee or to make inquiries as to whether an employee is an individual with a physical or mental disability or as to the nature or severity of such physical or mental disability.

3.Medical examinations and inquiries specifically permitted

A.Acceptable pre-employment inquiry. A covered entity may make pre-employment inquiries into the ability of an applicant to perform job-related functions, and/or may ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions.

B.Employment entrance examination. A covered entity may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of physical or mental disability.

(1) Information obtained under paragraph (B) of this subsection regarding the medical condition or history of the applicant shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, except that:

(a) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(b) First aid and safety personnel may be informed, when appropriate, if the physical or mental disability might require emergency treatment; and

(c) Government officials investigating compliance with this part shall be provided relevant information on request.

(2) The results of such examination shall not be used for any purpose inconsistent with this chapter or the Act.

(3) Medical examinations conducted in accordance with paragraph (B) of this subsection do not have to be job-related and consistent with business necessity. However, if certain criteria are used to screen out an employee or employees with physical or mental disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions cannot be accomplished with reasonable accommodation as required in this part.

C.Examination of employees. A covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. A covered entity may make inquiries into the ability of an employee to perform job-related functions.

(1) Information obtained under paragraph (C) of this subsection regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, except that:

(a) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(b) First aid and safety personnel may be informed, when appropriate, if the physical or mental disability might require emergency treatment; and

(c) Government officials investigating compliance with this part shall be provided relevant information on request.

(2) Information obtained under paragraph (C) of this subsection regarding the medical condition or history of any employee shall not be used for any purpose inconsistent with this chapter or the Act.

D.Other acceptable examinations and inquiries. A covered entity may conduct voluntary medical examinations and activities, including voluntary medical histories, which are part of an employee health program available to employees at the work site.

(1) Information obtained under paragraph (D) of this subsection regarding the medical condition or history of any employee shall be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, except that:

(a) Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(b) First aid and safety personnel may be informed, when appropriate, if the physical or mental disability might require emergency treatment; and

(c) Government officials investigating compliance with this part shall be provided relevant information on request.

(2) Information obtained under paragraph (D) of this subsection regarding the medical condition or history of any employee shall not be used for any purpose inconsistent with this chapter or the Act.

E. When a covered entity is taking remedial action to correct the effects of past discrimination, when a covered entity is taking voluntary action to overcome the effects of conditions that, in the past, resulted in limited employment opportunities for individuals with physical or mental disabilities or when a covered entity is taking other affirmative action, covered entity may ask applicants to what extent they have a physical or mental disability, provided that:

(1) The covered entity states clearly on any written questionnaire used for this purpose or makes clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary or affirmative action efforts; and

(2) The covered entity states clearly that the information is being requested on a voluntary basis, that it will be kept confidential as provided in subparagraph (B)(1) of this subsection, that refusal to provide it will not subject the applicant or employee to any adverse treatment and that it will be used only in accordance with this chapter and the Act.

94-348 C.M.R. ch. 3, § 13