Disabilities (ADA): District of Columbia
Federal law and guidance on this subject should be reviewed together with this section.
Authors: William F. Allen and Michelle Barrett Falconer, Littler
- In addition to the federal equal opportunity laws, District of Columbia employers must comply with municipal law, including the District of Columbia Human Rights Act (DCHRA). See Disability Discrimination in District of Columbia.
- The DCHRA specifically prohibits an employer from failing or refusing to hire or terminating any individual or otherwise discriminating against any individual with respect to the individual's compensation, terms, conditions or privileges of employment because of the individual's disability or genetic information. See The District of Columbia Human Rights Act.
- The District of Columbia's Office of Human Rights has expressly adopted the federal regulations on disability discrimination, except as otherwise provided by its own regulations. See What Is a Disability?.
- The District of Columbia's law contains a specific prohibition against requesting or requiring any genetic test of, or administering a genetic test to, any individual as a condition of employment or application for employment, or seeking to obtain, obtaining, or using genetic information of an employee or applicant for employment. See Genetic Testing.
- Employers must provide reasonable accommodations to employees affected by pregnancy, childbirth, a related medical condition or breastfeeding. See Pregnancy-Related Accommodations.
- The District of Columbia permits the use of medical marijuana by registered patients with a qualifying medical condition. See Medical Marijuana Law.
Disability Discrimination in the District of Columbia
In addition to the federal equal opportunity laws (see Employee Management > EEO - Discrimination), District of Columbia private employers must comply with local antidiscrimination laws, including the District of Columbia Human Rights Act. Where both federal and District of Columbia discrimination laws apply, there may be conflicts, and the law more generous to the employee should be followed.
The District of Columbia Human Rights Act
The District of Columbia Human Rights Act (DCHRA), +D.C. Code § 2-1401.01, specifically prohibits an employer from:
- Failing or refusing to hire, terminating or otherwise discriminating against any individual with respect to the individual's compensation, terms, conditions or privileges of employment because of the individual's disability or genetic information;
- Limiting, segregating or classifying employees or job applicants because of their disability or genetic information in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee;
- Discriminating in admission to or employment in apprenticeship, job training or retraining programs; and
- Printing or publishing any notice or advertising relating to employment that unlawfully indicates any preference, limitation, specification or distinction based on disability or genetic information;
- Coercing, threatening, retaliating against or interfering with any person in the exercise or enjoyment of, on account of having exercised or enjoyed, or on account of having aided or encouraged any other person in the exercise or enjoyment of rights under the DCHRA; and
- Requiring, requesting or suggesting that a person retaliate against, interfere with, intimidate or discriminate against a person because that person has opposed any unlawful practice or has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing authorized by the DCHRA.
In addition, an amendment to the DCHRA prohibits discrimination against employees based on their status as a victim or family member of a victim of domestic violence, sexual offenses, and stalking and contains accommodation provisions. +2017 Bill Text DC B. 14. Among other things, the law prohibits an employer from discriminating against an employee who sought physical or mental health treatment or counseling for domestic violence, a sexual offense, or stalking of which the employee or employee's family member was a victim. For more detailed information on the discrimination protections and accommodation provisions for victims of domestic violence, see EEO - Discrimination: District of Columbia.
Unlike the ADA, which applies to employers with 15 or more employees, the DCHRA applies to any person who, for compensation, employs an individual, with certain exceptions for family and domestic servants. +D.C. Code § 2-1401.02(10). Supervisors and managers may be held personally liable under the DCHRA.
Because the scope of the DCHRA is broader than that of the ADA (i.e., the DCHRA extends to any person, in contrast to the ADA's coverage of employers with 15 or more employees. See Employee Management > Disabilities (ADA) > ADA Employer Applicability), smaller District of Columbia employers should be mindful that they may be subject to state law requirements to make reasonable accommodations.
The DCHRA defines an employee as any individual employed by or seeking employment from an employer. The term includes unpaid interns. +D.C. Code § 2-1401.02(9).
What Is a Disability?
Similar to the ADA, the DCHRA defines disability as:
- A physical or mental impairment that substantially limits one or more major life activity of an individual;
- Having a record of such impairment; or
- Being regarded as having such an impairment.
Except as described in the next section, the District of Columbia Office of Human Rights has adopted and incorporated by reference the federal Equal Employment Opportunity Commission (EEOC) regulations implementing the ADA. +CDCR 4-514.1. An employer may consider mitigating measures in determining whether or not an employee has a disability under the DCHRA (e.g., because an employee's thyroid condition is relieved by taking his or her thyroid medication, he or she is not substantially limited in any major life activity).
Preemployment Inquiries, Testing and Hiring
A District of Columbia employer may make preemployment inquiries with regard to an applicant's physical condition or past medical history. Such inquiries, however, must be based upon a business necessity or be necessary to comply with District of Columbia or federal affirmative action requirements. An employer may consider only whether an individual's physical impairment is likely to prevent the applicant from being able to do the job in a safe and effective manner. +CDCR 4-514.3.
The use of nondiscriminatory selection procedures does not relieve an employer of other legal obligations to take positive action in affording employment and training to persons with disabilities. +CDCR 4-514.8.
The District of Columbia restricts an employer's ability to conduct preemployment marijuana testing. See Preemployment Marijuana Testing.
Business Necessity Exception
The DCHRA provides that a business necessity exception is applicable only in each individual case where an employer can prove that, without such exception, such business cannot be conducted. A business necessity exception cannot be justified by:
- Increased cost to business;
- Business efficiency;
- The comparative characteristics of one group as opposed to another;
- The stereotyped characterization of one group as opposed to another; and
- The preferences of co-workers, employers, customers or any other person.
The regulations further provide that before a business necessity may excuse discrimination against a person with a disability, it must be found that there is no alternative to the particular practice or that a reasonable accommodation cannot be made. +CDCR 4-514.9. Preferences of employees, tenants, patrons, clients or other individuals that serve to exclude the physically disabled will not be considered within the purview of business necessity. +CDCR 4-514.11.
Any tests offered to applicants and employees must be related to the job. For example, an employer may not give a blind person a vision test when sight is not required for the job. +CDCR 4-514.5.
An employer may not refuse to hire a person with a disability when lack of such disability is required for a secondary portion of the job and when reasonable accommodation can be made through minor job restructuring. +CDCR 4-514.4.
If an employer provides health and insurance benefits to employees for some disabilities, such benefits must be provided for all disabilities having a similar anticipated cost. This requirement does not prevent exclusions based on the cost of service to the individual, but it does prevent exclusions based on the number of individuals to be serviced. +CDCR 4-514.6.
Excessive absenteeism, even if caused by injury or illness, may be grounds for termination if it interferes significantly with or causes an undue hardship upon the performance of duty +CDCR 4-514.7.
Duty to Accommodate
Where an employee's specific physical or mental disability precludes the normal operation of a business or particular activity in existing structures, reasonable accommodation must be made, where possible, through modifications in job description, workplace design or physical renovation. In determining whether a modification is a reasonable accommodation, an employer should consider factors such as the following:
- The nature and cost of the modification;
- The number of people, both those with and without disabilities, who would benefit by the modification;
- The benefits or detriments resulting from the modification with regard to the type and composition of the business and the physical structure and layout of the workplace; and
- When new construction (e.g., substantial redesign or remodeling) occurs, whether the modification should provide for increased physical accessibility.
An employer must retain employees who have become disabled while on the job so long as a reasonable accommodation can be made. +CDCR 4-514.12.
With respect to the accommodation of reassignment, the District of Columbia, along with the 7th and 10th Circuits, has held that the ADA does require an employer to place an employee with a disability, who is minimally qualified for a position, into the position in lieu of a more qualified candidate. (See The 7th Circuit Changes Its Position on Assigning Employees With Disabilities to Vacant Positions.) Other courts have held that the ADA does not necessarily require an employer to place an employee with a disability in a job for which there is a better applicant, provided the employer has a policy and/or consistent practice of hiring the best applicant. As the issue of whether an individual with a disability, who is minimally qualified for a position, should receive "preferential" treatment in reassignment decisions is evolving, it is advisable to consult with employment counsel when considering reassignment as a potential reasonable accommodation.
A covered employer must post a notice of the District of Columbia's law against discrimination in employment in a conspicuous location, where business activities take place, accessible to employees. The notice must include summaries of the applicable portions of the DCHRA and the information needed in order for an individual to file a complaint.
Similar to the Equal Employment Opportunity Commission's (EEOC's) role in enforcing Title VII, the District of Columbia Office of Human Rights (OHR) is the enforcement authority for the DCHRA. Private sector complaints under the DCHRA are adjudicated by the District of Columbia Commission on Human Rights (CHR), which consists of 15 Commissioners nominated by the Mayor and approved by the City Council. Although the CHR is part of the OHR, it operates independent of the OHR in order to resolve cases impartially.
Any person claiming to be aggrieved, rather than simply the person directly discriminated against, may file a complaint under the DCHRA. In addition, an organization or the Director of the OHR may also file a complaint. A person claiming to have suffered discrimination may either file an administrative charge with OHR or file a private action in court. If the individual chooses to pursue the claim through the administrative process, the OHR may award compensatory damages and attorney fees, but not punitive damages. If the individual pursues a lawsuit through the court, the court may award damages or other relief as it deems necessary.
If the OHR issues a finding of "no probable cause" to believe that discrimination has occurred, the complainant is not permitted to refile the claim in court. However, if the OHR dismisses the individual's complaint on grounds of administrative convenience, or if the individual withdraws the complaint before a final determination, the individual may pursue a lawsuit in court.
The DCHRA contains a specific prohibition against requesting or requiring any genetic test of, or administering a genetic test to, any individual as a condition of employment or application for employment, or seeking to obtain, obtaining or using genetic information of an employee or applicant for employment. +D.C. Code § 2-1402.11(a)(4)(C).
An employer may, however, request and use genetic information to determine the existence of a bona fide occupational qualification, where such qualification is reasonably necessary for the normal operation of the employer's business. In such a circumstance, the employee or applicant gives his or her written informed consent and receives the genetic information in writing as soon as it is available. The genetic information may not be disclosed to any other person. The DCHRA also does not prohibit an employer from seeking, obtaining or using genetic information to:
- Investigate a workers' compensation or disability compensation claim; or
- Determine an employee's or applicant's susceptibility or level of exposure to potentially toxic substances in the workplace.
A majority of the relevant regulations issued by the Director of the OHR are similar to the prohibitions against discrimination for genetic information found in the DCHRA. +CDCR 4-509. The regulations also prohibit an employer from using an individual's family medical history in making employment decisions or requesting information about an individual's family medical history.
The Protecting Pregnant Workers Fairness Act of 2014 (the Act) requires an employer to provide reasonable accommodations for workers whose ability to perform the functions of their jobs is limited by pregnancy, childbirth, a related medical condition or breastfeeding.
The Act does not specify a threshold number of employees an employer must have in order to be covered by the Act. Thus, it appears that all employers operating in the District of Columbia are subject to this law.
An employer must engage in good faith in a timely and interactive process with an employee "requesting or otherwise needing" a reasonable accommodation. The Act defines reasonable accommodation as an accommodation that does not cause undue hardship in the operation of the employer's business that an employer can make for an employee whose ability to perform the functions of her job are affected by pregnancy, childbirth, a related medical condition or breastfeeding. The employer bears the burden of proving that an undue hardship (i.e., significant difficulty or expense) would exist if the employer provided an accommodation. Examples of reasonable accommodations include:
- More frequent or longer breaks;
- Time off due to pre-birth complications;
- Time off to recover from childbirth;
- Acquisition or modification of equipment or seating;
- Temporary transfer to a less strenuous or hazardous position or other job restructuring, such as light duty or a modified work schedule;
- Refraining from heavy lifting;
- Relocating the employee's work area; or
- Private space (not a bathroom) for expressing breast milk.
An employer may not require an employee to accept an accommodation that the employee chooses not to accept or if the accommodation is not necessary for the employee to perform her duties. Moreover, an employer may not require an employee to take leave if a reasonable accommodation can be provided.
An employer may require an employee to provide a certification from the employee's health care provider concerning the medical advisability of a reasonable accommodation, as long as the employer's policies similarly require medical certification for other temporary disabilities. The certification must include:
- The date the reasonable accommodation became or will become medically advisable;
- An explanatory statement as to the medical condition and the advisability of providing the reasonable accommodation in light of the condition; and
- The probable duration that the reasonable accommodation will need to be provided.
An employer is required to post a notice of rights in a conspicuous location in the workplace. The notice must be published in both English and Spanish.
An employer must also provide written notice of an employee's right to a reasonable accommodation under the Act to:
- New employees at the start of employment; and
- An employee who notifies the employer of her pregnancy or other covered condition, within 10 days of the notification.
An employer is prohibited from:
- Refusing to provide a reasonable accommodation without demonstrating that the accommodation would impose an undue hardship;
- Taking an adverse action against an employee who requests or uses a reasonable accommodation, including failing to reinstate the employee when the need for reasonable accommodations ends to the employee's original job or to an equivalent position with equivalent pay, benefits, seniority, accumulated retirement and other applicable service credits;
- Denying employment opportunities to an employee or a job applicant, if the denial is based on the individual's need for reasonable accommodations; and
- Taking an adverse action against an employee who has been absent from work due to a pregnancy-related condition, including pre-birth complications.
An employee may bring either an administrative action with the Department of Employment Services or a civil action to enforce her rights under the Act.
Discrimination Based on Reproductive Choices
The DCHRA also prohibits discrimination based on an employee's reproductive health decisions. Women affected by reproductive health conditions must be treated the same for all employment-related purposes - including receiving benefits under fringe benefit programs - as others who are not affected by such decisions but who are similar in their ability or inability to work.
A reproductive health decision is a decision by an employee, an employee's dependent or an employee's spouse related to the use or intended use of a particular drug, device or medical service, including the use or intended use of contraception or fertility control or the planned or intended initiation or termination of a pregnancy. +D.C. Code § 2-1401.05.
Medical Marijuana Law
The District of Columbia permits the use of medical marijuana by registered patients with a qualifying medical condition. A qualifying medical condition includes:
- HIV and AIDS;
- Conditions characterized by severe and persistent muscle spasms, such as multiple sclerosis;
- Cancer, or
- Any other condition that is:
- Chronic or long-lasting;
- Debilitating or interferes with the basic functions of life; and
- A serious medical condition for which the use of medical marijuana is beneficial that cannot be effectively treated by any ordinary medical or surgical measure or for which there is scientific evidence that the use of medical marijuana is likely to be significantly less addictive than the ordinary medical treatment for that condition.
While some states with medical marijuana protections have specific provisions for employers for dealing with employees who may be registered medical marijuana users, the District of Columbia's law does not have any such provisions. However, a District employer should be mindful of the federal ADA and Drug-Free Workplace Act. Under federal law:
- While the 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 covered employers 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.
A District 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 (i.e., providing employee a reasonable opportunity to contest the discipline) who tests positive;
- Address the policy on the use of medical marijuana within the 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 which 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.
A District 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.
Preemployment Marijuana Testing
The Prohibition of Pre-Employment Marijuana Testing Act of 2015 (Act) prohibits an employer from testing prospective employees for marijuana use until after making a conditional offer of employment, unless otherwise required by law. However, the Act does not:
- Affect employee compliance with employer workplace drug policies;
- Require an employer to permit or accommodate marijuana use, consumption, transfer, display, transportation, sale or growing in the workplace or at any time during employment;
- Interfere with federal employment contracts; or
- Prevent an employer from denying a position based on a positive test for marijuana.
An employer may therefore conduct post-offer drug testing on prospective employees and revoke a job offer if the applicant tests positive for marijuana. An employer is also free to maintain workplace drug policies prohibiting employees from using or being under the influence of marijuana in the workplace.
For public accommodation purposes, the District of Columbia protects the right of individuals with physical or mental disabilities to be accompanied by a service animal. +D.C. Code § 7-1002(b). A service animal is defined as an animal that is specially trained to assist an individual with physical or mental disabilities. The statute does not define the type of animal eligible to function as a service animal, but the District of Columbia puts further restrictions on the types of animals that any citizen may possess, allowing only the following: domestic dogs, cats, rodents and rabbits; captive-bred species of common cage birds; nonpoisonous snakes; fish; turtles; and racing pigeons (with permit). +D.C. Code § 8-1808(h)(1).
Emotional Support Animals
For public accommodation purposes, District of Columbia law specifically excludes animals whose sole purpose is to serve as a crime deterrent or companion. +D.C. Code § 7-1009(5). Thus, unless the animal is specially trained and utilized to assist an individual with physical or mental disabilities, the law does not provide for emotional support animals in the workplace or in places of public accommodation.
Service Animal Trainers
Service animal trainers receive similar protections as those provided to an individual with a disability in places of public accommodation. +D.C. Code § 7-1002(c). Service animals in training include animals that are at least six months old, undergoing special training to assist mentally or physically disabled persons, accompanied by an experienced trainer and identified by a harness, backpack or vest. +D.C. Code § 7-1009(6).
For a discussion of the federal ADA service animal requirements, please see Disabilities (ADA): Federal > Service Animals.
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