Disability Discrimination and Reasonable Accommodation in Massachusetts: An Employer’s Guide

Massachusetts Business Attorney · Employment Law

When an employee tells you about a medical condition and asks for a change at work, Massachusetts law expects you to take the request seriously. The main state statute is Chapter 151B, which still uses the older word “handicap” where federal law says “disability.” It bars discrimination against qualified employees with a handicap and requires reasonable accommodation unless the employer can show undue hardship.

This guide explains who is covered, what counts as a handicap, how accommodation requests should be handled, and the deadlines that apply when an employee files a complaint.

Which employers are covered?

Chapter 151B applies to most Massachusetts employers with six or more employees (G.L. c. 151B, § 1(5)). It also covers the Commonwealth and its cities and towns. A few narrow exclusions exist, such as an exclusively social club or a fraternal organization that is not organized for private profit.

The federal Americans with Disabilities Act (ADA) generally applies only to employers with 15 or more employees for each working day in 20 or more calendar weeks in the current or preceding year. A Massachusetts business with 6 to 14 employees can be outside the ADA and still fully subject to Chapter 151B. Larger employers have to comply with both laws.

What counts as a “handicap” in Massachusetts?

Under § 1(17), a person has a handicap if he or she has:

• A physical or mental impairment that substantially limits one or more major life activities;
• A record of having such an impairment; or
• Is regarded as having such an impairment.

The statute also protects the lawful, clinically appropriate use of FDA-approved medication to treat opioid use disorder. It does not protect current, illegal use of a controlled substance.

“Major life activities” include caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working (§ 1(20)). The list is not exhaustive.

Whether a particular employee has a handicap is an individualized question. The Supreme Judicial Court has said so directly and has cautioned against blanket rules for particular conditions (Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632 (2004)). Two employees with the same diagnosis can come out differently.

Temporary injuries and short illnesses

Not every medical problem is a handicap. The Massachusetts Commission Against Discrimination (MCAD) says in its Guidelines on disability discrimination in employment that chronic or episodic disorders that are substantially limiting may be handicaps. Isolated medical problems and short-term illnesses usually are not. The Guidelines give the example of a broken arm that heals normally.

The MCAD looks at the nature and severity of the impairment, how long it lasts or is expected to last, and its permanent or long-term impact. A routine injury that heals on schedule will usually not qualify. One that leads to complications, repeated surgery or lasting limitations may. Don’t decide the question on the diagnosis alone. And even if a condition is not a handicap, the employee may still have rights under leave laws. See our FMLA guide for Massachusetts employers.

Medication, hearing aids and other mitigating measures

In Dahill v. Police Department of Boston, 434 Mass. 233 (2001), a police recruit had a severe hearing impairment but heard normally with hearing aids. The SJC held that Chapter 151B does not require mitigating or corrective devices to be taken into account in deciding whether a person has a handicap. An employee whose condition is controlled by medication or a device can still be protected.

Federal law now takes the same general approach. The ADA Amendments Act of 2008 requires the definition of disability to be construed in favor of broad coverage, and it bars considering mitigating measures such as medication, hearing aids or prosthetics. Ordinary eyeglasses and contact lenses are the exception (42 U.S.C. § 12102(4)). For most employers, the practical lesson under both laws is the same: assume coverage is broad and focus your energy on the accommodation question.

Who is a “qualified” employee?

Chapter 151B protects a “qualified handicapped person,” meaning someone who can perform the essential functions of the job, either without accommodation or with a reasonable accommodation (§ 1(16)). An employee who cannot perform an essential function even with a reasonable accommodation is not protected from an adverse decision based on that inability.

This makes accurate job descriptions important. Decide in advance which duties are truly essential and write them down. Physical or mental job requirements must be functionally related to the specific job and consistent with its safe and lawful performance (§ 4(16)).

The duty to provide reasonable accommodation

Section 4(16) makes it unlawful to fire, refuse to hire or promote, or otherwise discriminate against a qualified handicapped person who can do the job with reasonable accommodation, unless the employer can show that the accommodation would impose an undue hardship on its business. In deciding undue hardship, the statute looks at:

• The overall size of the business, including number of employees, number and type of facilities, and budget or available assets;
• The type of operation, including the composition and structure of the workforce; and
• The nature and cost of the accommodation needed.

Undue hardship is the employer’s burden to prove, and it depends on the facts. What is a hardship for a ten-person shop may not be for a large company.

There are limits on what an employer must do. The SJC has held that reasonable accommodation does not require an employer to create a new position for the employee (Russell v. Cooley Dickinson Hospital, Inc., 437 Mass. 443 (2002)). Common accommodations include modified schedules, changes in equipment or the work area, reassigning non-essential tasks, and time off.

The interactive process: talk it through

The employee generally has the initial burden to ask for an accommodation (Godfrey v. Globe Newspaper Co., 457 Mass. 113 (2010), citing Russell). The request does not have to be formal. It does have to make the employer aware that the employee has a handicap and needs help to do the job or to enjoy equal terms of employment. In Ocean Spray, the SJC read an employee’s repeated requests and doctors’ letters together as a clear request, even though some might not have been enough on their own.

Once a request is made, the employer is expected to engage in an “interactive process,” a good-faith dialogue to identify the employee’s limitations and possible accommodations. In Ocean Spray, the employer did not respond to repeated requests and doctors’ letters, and the SJC upheld the finding that it failed its obligations under Chapter 151B.

It is important to be precise about what failing to engage means. It is not automatically a violation in every case. In Godfrey, the employee could not perform an essential function with or without a reasonable accommodation, and the SJC said the employer had no obligation to engage in dialogue about a nonexistent possibility of accommodation. The employee must first make at least a facial showing that a reasonable accommodation was possible. The burden then shifts to the employer to prove undue hardship. In a 2008 decision involving the MBTA and a request for religious accommodation, the SJC likewise rejected the view that failing to engage is a violation in itself, regardless of whether an accommodation was feasible. In that case, though, the employer still lost because it had not explored the options the employee raised (see the MCAD’s 2008 legal update).

For an employer, the practical lesson is simple. Ignoring a request is a serious risk, because you will rarely know in advance that no accommodation could have worked. If the employee’s proposal seems too burdensome, work with the employee to look for an alternative. A good process looks like this:

• Acknowledge the request promptly and in writing.
• Meet with the employee to understand the specific limitations and what he or she is asking for.
• Where the need is not obvious, ask for medical information limited to the condition and the accommodation. Do not ask for the employee’s full medical history.
• Consider the employee’s proposal and any reasonable alternatives.
• Explain your decision, and if you deny a request, explain why and whether something else could work.
• Document every step, and treat the employee’s medical information as confidential.

Attendance policies and leave

A neutral attendance policy is not illegal on its face. Problems come up when a policy is applied rigidly to an employee who has asked for an accommodation, such as a modified schedule or time off, without considering whether the request is reasonable. Treat an accommodation request that involves attendance the same way as any other: talk it through, look at the options and document the decision.

Medical questions during hiring

Section 4(16) restricts medical inquiries before a job offer. An employer may not ask an applicant before an offer whether he or she is handicapped, or about the nature or severity of a handicap. The statute does allow an employer to:

• Make a job offer conditional on a medical examination conducted solely to determine whether the person, with reasonable accommodation, can perform the essential functions of the job; and
• Invite applicants to disclose a handicap voluntarily for affirmative action purposes.

Review your application forms and interview scripts. Ask whether the applicant can perform the essential functions of the job, with or without reasonable accommodation, rather than asking about health conditions.

Deadlines for discrimination complaints

An employee who believes he or she was discriminated against must generally file a complaint with the MCAD within 300 days after the alleged act of discrimination (G.L. c. 151B, § 5). The SJC has treated an employer’s refusal of a particular accommodation request as a discrete act for timing purposes, so each request and denial can matter (Ocean Spray).

After a complaint has been pending at the MCAD for 90 days, or sooner if a commissioner agrees in writing, the employee may remove the matter to court by filing a civil action, but no later than three years after the alleged unlawful practice (G.L. c. 151B, § 9). The MCAD complaint is then dismissed.

Federal ADA charges go to the U.S. Equal Employment Opportunity Commission. The EEOC deadline is generally 180 days, extended to 300 days where a state agency like the MCAD enforces a similar law.

Employers should also remember that Chapter 151B prohibits retaliation against anyone who opposes discrimination or files a complaint, and prohibits interfering with an employee’s exercise of rights under the statute (§ 4(4) and (4A)). Our article on retaliation claims against Massachusetts employers covers that risk.

Practical steps for Massachusetts employers

• Confirm which laws apply to you: Chapter 151B at 6 employees, the ADA at 15.
• Keep written job descriptions that identify essential functions.
• Adopt a written accommodation procedure and tell employees whom to contact.
• Train managers to recognize a request, even an informal one, and to send it to the right person.
• Remove health questions from pre-offer applications and interviews.
• Document the interactive process and the reasons for every decision.

Getting help with accommodation questions

Accommodation questions turn on specific facts, and getting the process right is often the best protection against a claim. If an employee has asked for an accommodation, or you want to review your policies, learn more about our Massachusetts business law services or contact our office.

About the Author

Richard Alan Gaudet, Esq. is a Massachusetts attorney at the Law Offices of Richard Alan Gaudet, LLC in Middleton, Massachusetts, who advises business owners on employment policies, workplace compliance and disputes. His practice focuses on professional license defense, business law and litigation, family law, and landlord representation, serving clients across Northern, Eastern, and Central Massachusetts. Reach him at 978-273-8337 or rgaudet@gaudetlawoffice.com. Office: 35 Village Rd., Ste 100, Middleton, MA 01949.

ABOUT THIS ARTICLE

This article was prepared by a Massachusetts attorney and is provided solely for general informational and educational purposes directed to members of the general public. It does not constitute legal advice and does not create an attorney-client relationship. The law applicable to any particular situation depends on the specific facts and circumstances of that matter. Readers are encouraged to seek the advice of a licensed Massachusetts attorney before taking any action.