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Disabilities (ADA): Kentucky

Disabilities (ADA) requirements for other states

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

Authors: Michelle Barrett Falconer and Emily H. Morris, Littler

Summary

  • In addition to the federal equal opportunity laws, Kentucky employers must comply with a number of state and local antidiscrimination statutes, including the Kentucky Civil Rights Act and the Equal Opportunities Act. See The Kentucky Civil Rights Act.
  • An employer with 15 or more employees is required to provide reasonable accommodations for pregnancy, childbirth or a related medical condition. See Pregnancy Accommodations.
  • Kentucky law prohibits discrimination against individuals with HIV or AIDS. See The Equal Opportunities Act (EOA).
  • Kentucky permits the use of medical marijuana under very limited circumstances. See Medical Marijuana.
  • Louisville-Jefferson County has requirements pertaining to disability discrimination. See Local Requirements.

Kentucky Disability Discrimination Laws

In addition to the federal equal opportunity laws (see EEO - Discrimination: Federal), most Kentucky employers must also comply with the Kentucky Civil Rights Act and the Kentucky Equal Opportunities Act. Where both federal and state discrimination laws apply, there may be conflicts, and the law more generous to the employee should be followed.

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

The Kentucky Civil Rights Act (KCRA)

Generally, the KCRA prohibits discrimination on the basis of age, race, color, national origin, religion, sex, mental or physical disability, and familial status or because the person is a smoker or nonsmoker (as long as the person complies with any workplace policy concerning smoking). +KRS § 344.010. See Employee Management > EEO - Discrimination.

Covered Employers

Similar to the federal Americans with Disabilities Act (ADA), the KCRA prohibits employment practices that discriminate against qualified individuals with a disability. +KRS § 344.010. While the KCRA generally applies to employers with eight or more employees in the state during 20 or more weeks in the current or preceding calendar year, for a claim of disability discrimination, the KCRA applies to employers with 15 or more employees in the state during 20 or more weeks in the preceding calendar year. +KRS 344.030.

Who Is Protected Under the KCRA?

The KCRA protects:

  • Employees;
  • Applicants;
  • Individuals applying for employment referral;
  • Individuals applying for licenses;
  • Labor organization members;
  • Applicants for labor organization membership; and
  • Individuals applying for admission in training programs.

An employee is an individual employed by an employer, but does not include an individual employed by parents, spouses or children or individuals employed as domestics.

What Is a Disability?

The disability provisions of the KCRA are interpreted to be consistent with the ADA. See Employee Management > Disabilities (ADA) > What is a Disability? The KCRA covers qualified individuals with disabilities. Under the KCRA, a disability with respect to an individual is defined as:

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

A qualified individual with a disability is one who, with or without reasonable accommodation, can perform the essential functions of the employment position at issue, unless the employer demonstrates its inability to accommodate the person's disability without undue hardship on the employer's business.

Alcohol and Substance Abuse

The KCRA does not protect persons with current or past controlled substance abuse or alcohol abuse problems and persons excluded from coverage by the ADA (i.e., persons currently engaged in illegal use of drugs). Under the ADA, however, someone who currently uses alcohol is not automatically denied protection under the ADA simply because of the alcohol use (i.e., an alcoholic is a person with a disability under the ADA). In addition, the ADA protects those that have successfully completed or are participating in a supervised drug rehabilitation program or are erroneously regarded as engaging in the illegal use of drugs. Accordingly, an employer covered by both federal and state law might need to consider an accommodation if the alcoholic individual is qualified to perform the essential functions of a job (and provide the same consideration for former drug addicts). See Employee Management > Disabilities (ADA) > Medical Examinations/Inquiries.

Duty to Accommodate

The KCRA follows the ADA with respect to the duty to accommodate. See Employee Management > Disabilities (ADA) > Duty to Accommodate and the Interactive Process. For example, similar to the ADA, under the KCRA, reasonable accommodations may include:

  • Making existing facilities used by employees readily accessible to and usable by individuals with disabilities;
  • Job restructuring;
  • Part-time or modified work schedules;
  • Reassignment to a vacant position;
  • Acquisition or modification of equipment or devices;
  • Appropriate adjustment or modification of examinations, training materials or policies; and
  • Provision of qualified readers or interpreters.

An employer's judgment regarding what functions of a job are essential must be considered. In addition, an employer's written job description, prepared before a job is advertised or applicants are interviewed, must be treated as evidence of the essential functions.

An undue hardship can be demonstrated by any action involving significant difficulty or expense. Factors to be considered include:

  • The nature and cost of the accommodation;
  • The overall financial resources of the facility or facilities involved, the number of employees at the facility, the effect on expenses and resources or any other impact on the operation of the facility; and
  • The type of operations of the covered entity, including the composition, structure and functions of the entity's workplace, as well as the particular facility's geographic independence from an administrative or fiscal relationship to the covered entity.

Enforcement

Similar to the Equal Employment Opportunity Commission's role in enforcing the ADA, the Kentucky Commission on Human Rights (KCHR) is the enforcement authority for the KCRA. Unlike many states, Kentucky does not require an employee to pursue an administrative claim before filing suit; however, if an individual pursues an administrative claim with the KCHR and the KCHR issues a determination, the individual is precluded from bringing a KCRA claim in state court based on the same facts. See Vaezkoroni v. Domino's Pizza, +914 S.W.2d 341 (Ky. 1995). The individual could still pursue an ADA claim in federal court. See Employee Management > EEO - Discrimination: Kentucky.

Pregnancy Accommodations

The KCRA requires an employer with 15 or more employees in the state to provide reasonable accommodations to employees for their own limitations related to pregnancy, childbirth or related medical conditions (including, but not limited to, lactation).

Reasonable pregnancy-related accommodations may include:

  • More frequent or longer breaks;
  • Time off to recover from childbirth;
  • Acquisition or modification of equipment;
  • Appropriate seating;
  • Temporary transfer to a less-strenuous or less-hazardous position;
  • Job restructuring;
  • Light duty;
  • Modified work schedule; and
  • Private space that is not a bathroom for expressing milk.

When an employee requests an accommodation, the employer must engage in a timely, good-faith interactive process to determine effective reasonable accommodations.

The law requires an employer to make reasonable accommodations for any employee who requests an accommodation, unless the employer can show an undue hardship to the employer's program, enterprise or business.

To determine whether an accommodation for a pregnancy-related limitation creates an undue hardship, the law considers the factors delineated for disability discrimination purposes, as well as:

  • Duration of the requested accommodation; and
  • Whether similar accommodations are required by policy to be made, have been made or are being made for other employees due to any reason.

The law further provides that an employer cannot require an employee take leave if there is another reasonable accommodation that can be provided. If an employer has a policy to provide, is currently providing, has provided or would provide an accommodation similar to the requested accommodation to other classes of employees, the law creates a rebuttable presumption that the requested accommodation does not impose an undue hardship on the employer.

Covered Kentucky employers are also required to provide written notice of the right to be free from discrimination in relation to pregnancy, childbirth and related medical conditions, including the right to reasonable accommodations. The notice must be:

  • Provided to new employees at the commencement of employment;
  • Provided to existing employees not later than 30 days after June 27, 2019; and
  • Conspicuously posted.

+KRS § 344.030.

An employer should review its policies and procedures concerning reasonable accommodations related to pregnancy, childbirth and related medical conditions.

The Equal Opportunities Act (EOA)

Kentucky's EOA prohibits discrimination:

  • Against any person with acquired immunodeficiency syndrome (AIDS), acquired immunodeficiency syndrome-related complex (ARC) or the human immunodeficiency virus (HIV);
  • Based on results of HIV-related tests, and status as a licensed health care professional who treats or provides patient care to persons infected with HIV; and
  • Against individuals with disabilities, and defines physical disability as a congenital or acquired physical condition that constitutes a substantial disability that is demonstrable by medically accepted clinical or laboratory diagnostic techniques. +KRS § 207.130(2).

Covered Employers

A covered employer includes any persons in Kentucky employing eight or more individuals, and persons acting directly or indirectly in the interests of employers. More specifically, the definition of persons includes:

  • Individuals;
  • Partnerships;
  • Associations;
  • Labor organizations;
  • Corporations; and
  • Municipalities, the state and other political subdivisions within the state.

+KRS § 207.130.

Who Is Protected Under the EOA?

The EOA protects:

  • Employees;
  • Applicants;
  • Individuals applying for employment referral;
  • Individuals applying for licenses;
  • Labor organization members;
  • Applicants for labor organization membership;
  • Training program participants;
  • Individuals applying for admission in training programs; and
  • Persons who have opposed unlawful discrimination or have participated in proceedings under the law.

Preemployment Inquiries

Unlike the ADA, which specifically prohibits preemployment inquiries into the nature, existence or extent of an applicant's disability, Kentucky law allows an employer to ask applicants whether they have a disability and the extent to which the disability has been overcome through the use of treatment or rehabilitation. Therefore, if a Kentucky employer is subject to both state and federal law, it must comply with the ADA on this issue, as the ADA provides greater coverage to the employee. See Employee Management > Disabilities (ADA) (Federal) > Preemployment Practices Regulated by the ADA.

No person covered by the EOA may require an individual to take an HIV-related test as a condition of hiring unless the absence of HIV is a bona fide (absolutely essential) occupational qualification. In these situations, the employer will be required to show whether an applicant with AIDS or a related disease will pose a significant risk of transmitting the disease to others and there is no way to accommodate the individual without requiring the test.

However, the EOA permits an employer to reject an applicant (i.e., not considered hiring discrimination) when:

  • The applicant's disability interferes with his or her ability to perform the job;
  • The applicant's disability is not demonstrable by medically accepted clinical or laboratory diagnostic techniques, such as alcoholism or obesity; and
  • The applicant has or is affected by a communicable disease.

Duty to Accommodate

While there is no express provision in the EOA that directly corresponds to the ADA's reasonable accommodation requirement, Kentucky law interprets the EOA consistent with the ADA, and therefore an employer must follow the ADA in this area. See Employee Management > Disabilities (ADA) > Duty to Accommodate and the Interactive Process.

A duty to provide reasonable accommodations for an individual infected with HIV is implied in the requirement that if a covered entity asserts that such an individual is not otherwise qualified, then that covered entity must prove that no reasonable accommodation can be made to prevent the likelihood (under the circumstances involved) of exposing other individuals to a significant possibility of infection.

Medical Marijuana

Kentucky has a law permitting the use of a form of medical marijuana under very limited circumstances that do not impact an employer's ability to maintain a drug-free workplace. For a list of states that have more expansive medical marijuana laws, please see Marijuana Laws by State.

Retaliation Against Opponents of Discrimination

Both the KCRA and the EOA prohibit retaliation or discrimination against persons who have opposed unlawful discriminatory practices or participated in discrimination law enforcement procedures. +KRS § 344.280; +KRS § 207.170. See Employee Management > EEO - Discrimination: Kentucky.

Under the KCRA, persons are prohibited from coercing others to violate the law, and labor organizations are prohibited from causing or attempting to cause employers to discriminate against individuals. This prohibition is broader than the prohibitions under the ADA and the federal Age Discrimination in Employment Act (ADEA), which only apply to coercion by labor organizations.

Service Animals

For purposes of public accommodations, Kentucky protects the right of persons with disabilities to be accompanied by an assistance dog. It does not define assistance dog. +KRS § 258.500.

Emotional Support Animals

Kentucky laws do not address 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. +KRS § 258.500(1).

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

Local Requirements

Louisville-Jefferson County Disability Discrimination

The Louisville-Jefferson County antidiscrimination ordinance prohibits discrimination in employment on the basis of disability, among other characteristics. It provides even broader coverage than federal or state law by defining an employer as any person who has two or more employees in each of four or more calendar weeks in the current or preceding calendar year.

Disability is defined as:

  • A physical or mental impairment that substantially limits one or more major life activities;
  • A record of such impairment; or
  • A condition that is regarded as causing such impairment.

Current illegal use of drugs or chemicals is not considered a disability.

Life activities include, but are not limited to:

  • Communication;
  • Ambulation;
  • Socialization;
  • Self-care;
  • Education;
  • Vocational training;
  • Employment;
  • Transportation; and
  • Adapting to housing.

Louisville-Jefferson County Metro Government Ordinance § 92.06.

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

Disabilities (ADA): Federal

EEO - Discrimination: Kentucky

Kentucky Commission on Human Rights

Equal Employment Opportunity Commission

Louisville, Kentucky - Human Relations Commission

Lexington-Fayette Urban County Human Rights Commission

Kentucky Labor Cabinet, Department of Workplace Standards