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Disabilities (ADA): Alaska

Disabilities (ADA) requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Authors: Sean Halloran and Michelle Barrett Falconer, Littler

Summary

  • In addition to the federal equal opportunity laws, Alaska employers must comply with state and local law.See Disability Discrimination in Alaska.
  • Alaska law makes it illegal for an employer, among others things, to refuse to hire a person or discriminate against a person in the terms, conditions or privileges of employment because of the person's physical or mental disability, when the reasonable demands of the position do not require distinction on the basis of physical or mental disability addition to the federal equal opportunity laws.See Alaska Statute 18.80.
  • Alaska permits the medical use of marijuana by registered patients with a debilitating medical condition. See Medical Use of Marijuana.
  • For public accommodation purposes, Alaska protects the rights of physically or mentally challenged individuals to be accompanied by a certified service animal. See Service Animals.
  • Anchorage has requirements pertaining to disability discrimination. See Local Requirements.

Disability Discrimination in Alaska

In addition to the federal equal opportunity laws (see EEO - Discrimination: Federal), Alaska employers must comply with the state antidiscrimination law, Alaska Stat. § 18.80, also known as the Alaska Human Rights Act (AHRA). Where both federal and state discrimination laws apply, there may be conflicts, and the law more generous to the employee should be followed.

Alaska employers may also be subject to local laws prohibiting disability discrimination. See Local Requirements.

Alaska Statute 18.80

+Alaska Stat. § 18.80.220 makes it illegal for:

  • An employer to refuse to hire a person, to bar a person from employment or to discriminate against a person in compensation or in a term, condition or privilege of employment because of the person's physical or mental disability, when the reasonable demands of the position do not require distinction on the basis of physical or mental disability;
  • An employer or employment agency to print or circulate or cause to be printed or circulated a statement, advertisement or publication, or to use a form of application for employment or to make an inquiry in connection with prospective employment, that expresses, directly or indirectly, a limitation, specification or discrimination as to physical or mental disability, or an intent to make the limitation, unless based upon a bona fide occupational qualification (necessary qualification);
  • An employer, labor organization or employment agency to terminate, expel or otherwise discriminate against a person because the person has opposed any practices forbidden under the law or because the person has filed a complaint, testified or assisted in a proceeding under the law; and
  • A person to print, publish, broadcast or otherwise circulate a statement, inquiry or advertisement in connection with prospective employment that expresses directly a limitation, specification or discrimination as to physical or mental disability, unless based upon a bona fide occupational qualification.

AS § 18.80 also specifically prohibits discrimination on the basis of physical or mental disability in contexts other than employment.

Covered Employer

For purposes of Alaska's antidiscrimination law, an employer means a person, including the state and a political subdivision of the state, who has one or more employees in the state. An employer does not include a club that is exclusively social, or a fraternal, charitable, educational or religious association or corporation, if the club, association or corporation is not organized for private profit.

Because the scope of Alaska law is broader than that of the ADA (i.e., Alaska law extends to persons employing one or more employees in the state, in contrast to the ADA's coverage of employers with 15 or more employees. See Employee Management > Disabilities (ADA) > ADA Employer Applicability), smaller Alaska employers should be mindful that they may be subject to state law requirements.

The Alaska Supreme Court has held that individual employees such as managers and supervisors cannot be held liable for violations of AS § 18.80, with one exception. An individual can be held liable for printing, publishing, broadcasting or otherwise circulating an advertisement or other material in connection with prospective employment that directly expresses a limitation, specification or discrimination as to, among other things, physical or mental disability, unless based upon a bona fide occupational qualification. +Alaska Stat. § 18.80.220(a)(6). The Supreme Court also clarified that individual liability has been recognized for those who aid and abet discrimination, except when the discriminating employee's own conduct is what gives rise to the employer's liability.

What Is a Disability?

Alaska law defines physical or mental disability as follows:

  • A physical or mental impairment that substantially limits one or more major life activities;
  • A history of, or a misclassification as having, a mental or physical impairment that substantially limits one or more major life activities;
  • Having:
    • A physical or mental impairment that does not substantially limit a person's major life activities but that is treated by the person as constituting such a limitation;
    • A physical or mental impairment that substantially limits a person's major life activities only as a result of the attitudes of others toward the impairment; or
    • None of the impairments defined in this paragraph but being treated by others as having such an impairment; or
  • A condition that may require the use of a prosthesis, special equipment for mobility or service animal.

A physical or mental impairment means:

  • A physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine; or
  • A mental or physiological disorder, including intellectual disability, organic brain syndrome, emotional or mental illness and specific learning disabilities.

+Alaska Stat. § 18.80.300.

Duty to Accommodate

Similar to the ADA, covered Alaska employers must make reasonable accommodations to qualified individuals with disabilities. An accommodation is not reasonable if an undue hardship exists. See Moody-Herrera v. State, Dept. of Natural Resources, +967 P.2d 79 (Alaska 1998); +6 Alaska Admin. Code § 30.910.

Enforcement Agency

The Alaska State Commission for Human Rights (ASCHR) is in charge of enforcing Alaska Statute 18.80 and its related regulations. It is similar to the federal Equal Employment Opportunity Commission (EEOC). All complaints filed with the EEOC concerning Alaska employers will be cross-filed with ASCHR, and all complaints filed with ASCHR will be cross-filed with EEOC. While individuals who wish to make a complaint have 300 days to file a claim with EEOC, they have only 180 days to bring a claim before ASCHR. Individuals are free to file their state law claim in court, however, and not initiate an administrative proceeding.

Medical Use of Marijuana

Alaska permits the medical use of marijuana by registered patients with a debilitating medical condition. A debilitating medical condition is defined as:

  • Cancer, glaucoma, positive status for human immunodeficiency virus, or acquired immune deficiency syndrome or treatment for any of these conditions; or
  • Any chronic or debilitating disease or treatment for such diseases, which produces, for a specific patient, one or more of the following, and for which, in the professional opinion of the patient's physician, such condition or conditions reasonably may be alleviated by the medical use of marijuana:
    • Cachexia;
    • Severe pain;
    • Severe nausea;
    • Seizures, including those that are characteristic of epilepsy; or
    • Persistent muscle spasms, including those that are characteristic of multiple sclerosis.

+Alaska Stat. § 17.37.070. For further information about the patient registration process under Alaska's medical marijuana program, see the Alaska Division of Public Health's website.

Alaska's law expressly does not require an employer to provide accommodation of any medical use of marijuana in the workplace. +Alaska Stat. § 17.37.040(d). Further, an Alaska employer should be mindful of the federal ADA and Drug-Free Workplace Act.

While the federal ADA does protect individuals who are former or recovering drug addicts from discrimination by employers, it also specifically permits an employer to take an adverse action (e.g., terminate, discipline) against employees on the basis of current illegal drug use. Therefore, an individual who currently abuses an illegal drug like marijuana is not considered to be an individual with a disability under the ADA. The federal Drug-Free Workplace Act of 1988 requires a covered employer to publish policies supporting a drug-free workplace and to report and discipline employees who engage in drug-related crimes occurring in the workplace. An employer that fails to comply may risk its eligibility to compete for federal contracts. Thus far, courts have upheld an employer's right to enforce a drug-free workplace even if an employee is using marijuana for medical purposes.

An Alaska employer should:

  • Exercise caution in dealing with employees who are registered medical marijuana users under state law and ensure that employees are afforded reasonable accommodations where necessary due to the employee's underlying medical condition that gave rise to the need to use medical marijuana;
  • Review its drug testing policies and reasonable accommodation policies and train supervisors to understand whether an employee is impaired. Supervisors and HR should also be trained on how to handle disciplining an employee (e.g., providing an employee with a reasonable opportunity to contest the discipline) who tests positive;
  • Address their policy on the use of medical marijuana within their written policy on substance abuse. For example, if an employer will treat medical marijuana just as it treats other illegal drug use, a published policy advising employees and applicants of that fact will help individuals who may be considering the use of medical marijuana to make an educated decision about how that use may affect their employment; and
  • Be cautious when implementing workplace policies that deal with the use of legally prescribed medication, generally, including legally prescribed medical marijuana. The ADA does not permit blanket prohibitions against on-the-job use of prescription medications in general. Thus, while drug testing policies can include legally prescribed drugs, an employer cannot have a zero-tolerance policy that permits adverse action (e.g., termination, demotion) against any employee who tests positive for prescription medication. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.

An Alaska employer may institute a policy against employees using or being under the influence of marijuana in the workplace. In addition, an employer may implement drug-free workplace policies and require employees to disclose prescription drugs that may adversely affect judgment, coordination or the ability to perform job duties. If an employee discloses that he or she uses a prescription drug, the employer should first request medical certification regarding the effect of the medication on the employee's ability to safely perform his or her essential job functions. The employer should then engage in the interactive process to determine whether a reasonable accommodation would enable the individual to remain employed.

Recreational use of marijuana is also legal in Alaska. For more information, please see Recruiting and Hiring > Preemployment Screening and Testing: Alaska.

Service Animals

For public accommodation purposes, Alaska protects the rights of physically or mentally challenged individuals to be accompanied by a certified service animal. Certified service animals must be trained to assist a physically or mentally challenged individual and must be certified by a service animal training facility as having completed the training. +Alaska Stat. § 11.76.130(c).

Service animal trainers receive similar protections as those provided to an individual with a disability in places of public accommodation. +Alaska Stat. § 11.76.133.

For a discussion of the federal ADA service animal requirements, please see Disabilities (ADA): Federal > Service Animals.

Local Requirements

Anchorage Disability Discrimination

Title 5 of the Anchorage Municipal Code largely mirrors Alaska state law in prohibiting discrimination. One difference is that Anchorage's definition of a physical or mental disability does not explicitly include "a condition that may require the use of a prosthesis, special equipment for mobility or service animal," as the state law does.

The Anchorage Equal Rights Commission (AERC) is charged with enforcing Anchorage's antidiscrimination ordinance.

+Anchorage, Alaska Code of Ordinances Sec. 5.20.010; +Anchorage, Alaska Code of Ordinances Sec. 5.20.040; +Anchorage, Alaska Code of Ordinances Sec. 5.20.075; +Anchorage, Alaska Code of Ordinances Sec. 5.20.080; +Anchorage, Alaska Code of Ordinances Sec. 5.20.090.

For more information, please see EEO - Discrimination: Alaska.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Alaska State Commission for Human Rights

Anchorage Equal Rights Commission