Employing a person with a disability: reasonable accommodations, the ban on discrimination and the employer’s duties

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An employee with a disability who asked for an ergonomic chair and was told “there is no budget” does not have to accept that. An employee with a visual impairment who is required to use software without adapted support may have a cause of action. The Equal Rights for Persons with Disabilities Law requires employers to make accommodations, and an employer who refuses without justification is actually breaking the law.

Who has the duty to make accommodations for an employee with a disability, and what does it include?

The Equal Rights for Persons with Disabilities Law, 5758-1998 requires an employer of six or more employees to make “accommodations” for employees and candidates with disabilities, as long as the accommodation does not impose an “undue burden” on it (section 8(e)). The prohibition of discrimination and the duty to make accommodations apply to an employer of six or more employees: the employment chapter of the Law does not apply to someone who employs fewer than six employees (section 13(a) of the Law, which applies section 21(c) of the Employment (Equal Opportunities) Law). The duty to act to promote suitable representation (section 9) is limited to employers of more than 25 employees.

Accommodations are needed not only in hiring but throughout the employment relationship: in the terms of employment, in the physical environment and in the work tools.

Which disabilities does the Equal Rights for Persons with Disabilities Law cover?

The Law defines a “person with a disability” as a person with a physical, mental or intellectual impairment, including a cognitive one, permanent or temporary, because of which their functioning is substantially limited in one or more of the main areas of life (section 5). When this condition is met, the definition can include:

• Physical disabilities: limited mobility, use of a wheelchair, repeated back surgery
• Sensory disabilities: blindness, visual impairment, deafness, hearing impairment
• Cognitive disabilities: intellectual developmental disability, autism, ADHD
• Mental disabilities: depression, anxiety, bipolar disorder
• Hidden disabilities: chronic illnesses, cancer, kidney failure

The critical point: a disability that is not visible is also covered. An employee with severe depression who was dismissed without regard to their condition is protected exactly like an employee who comes to work in a wheelchair. The prohibition also applies to someone who was a person with a disability in the past, to someone who is regarded as a person with a disability, and to family members who care for them (section 8(d)).

What exactly is prohibited under the ban on disability discrimination at work?

Section 8 of the Law prohibits discrimination on the basis of disability at every stage of employment:

• Recruitment and screening: do not reject a candidate because of a disability that is not relevant to the job
• Terms of employment: do not offer lower wages, benefits or terms
• Promotion: do not close doors to a capable employee because of their disability
• Dismissal: do not dismiss, because of the disability, an employee who is fit for the job (section 8(a)(5))

Note: the prohibition also applies when the disability is only one of the considerations in the decision. And in a claim about a dismissal, if the employee proved that there was no reason for the dismissal in their conduct or actions, the burden shifts to the employer to prove that it did not discriminate (section 13, which applies section 9(a) of the Employment (Equal Opportunities) Law).

What counts as a reasonable accommodation for an employee with a disability?

Physical: an adapted ergonomic chair, an accessible ramp, parking close to the entrance, accessible toilets, moving to the ground floor.

In work tools: software with support for people with low vision, large screens, adapted keyboards.

In schedules: flexible hours for a person with a disability that requires frequent treatments, partial work from home.

In the role: changing the division of tasks so that unsuitable tasks are passed to others.

When is an accommodation for an employee with a disability considered an undue burden on the employer?

The term in the Law is “undue burden”: a burden that is unreasonable in the circumstances, taking into account, among other things, the cost and nature of the accommodation, the size and structure of the business, the scope of its activity, the number of employees, the composition of the workforce, and the existence of external or state sources of funding for the accommodation (section 8(e)).

So the same accommodation may be reasonable in a large company and be considered an undue burden in a small business, and the state even participates in funding accommodations under regulations made under section 17(b) of the Law.

What happens when an employer refuses to make an accommodation for an employee with a disability? Refusing a reasonable accommodation is discrimination on the grounds of disability, a civil wrong (tort) for which you can sue. In addition, you can apply to the Commission for Equal Rights of Persons with Disabilities, which may also file a claim in its own name or in the name of the employee, with the employee’s consent (section 12).

Disability and dismissal: what is your protection?

Beyond accommodations, an employee with a disability is protected from dismissal because of their disability. Dismissing an employee who is fit for the job because of a disability is prohibited (section 8(a)(5)), and failing to make accommodations that would have allowed their continued employment is itself discrimination (section 8(e)). Employers who dismiss an employee with a disability “because we cannot make accommodations”, when there are alternatives that were not examined, risk a claim.

Duties of suitable representation in the public sector

An employer of more than 25 employees who sees that persons with disabilities are not suitably represented among its employees must act to promote suitable representation, including by making accommodations (section 9). At a large public employer, meaning a public body or a government company that employs at least 100 employees, representation is not deemed suitable unless at least 5% of its employees are employees with a significant disability (section 9B(b)). A separate arrangement applies to government ministries (section 15A of the Civil Service (Appointments) Law, 5719-1959 (חוק שירות המדינה (מינויים), התשי״ט-1959)).

What is the sanction for breaching the Equal Rights for Persons with Disabilities Law at work?

An employee who suffered discrimination can go to the Labor Court and sue for compensation, even without proof of monetary damage, in an amount the court sees fit; the Law does not set a cap on this compensation (section 14(1)). A civil claim becomes time-barred within five years of the day the cause of action arose, and a claim by a job seeker within three years (section 13, which applies section 14 of the Employment (Equal Opportunities) Law). In addition, if compensation alone would not be just, the court may give a prohibitory injunction or a mandatory order (section 14(2)), for example:

• The court can order the hiring of the candidate who was rejected
• It can cancel a dismissal and return an employee to their job
• It can impose on the employer a duty of accessibility for the future

A class action is possible on a cause of action under the employment chapter of the Law (item 9 of the Second Schedule to the Class Actions Law, 5766-2006). Under the conditions in section 12, a claim under the chapter may also be filed by the workers’ organization (trade union), by an organization that works to promote the rights of persons with disabilities, with the employee’s consent, and by the Commission for Equal Rights of Persons with Disabilities.

What to do now: a practical guide for employers

If you are an employer and want to act correctly:

• A written policy: set a clear procedure for handling accessibility requests. A written procedure and records serve as evidence if a dispute arises
• Records: every decision concerning an employee with a disability should be recorded. Even if you did not make the accessibility change, explain why
• Training managers: a manager who does not know they are discriminating still discriminates
• A careful hiring process: the requirements in the job posting must relate to the job, not to the person
• Advice before a dismissal: when an employee with a disability is involved, talk to a lawyer before dismissing (see advising employers on employment law)

Employees and candidates: what to collect when you suspect discrimination

The list is built on what needs to be shown in a claim under Chapter D of the Law:

• Documentation of the disability: a medical or professional document showing that the impairment substantially limits functioning (section 5)
• The request for an accommodation and the answer to it: failing to make an accommodation that is not an undue burden is discrimination (section 8(e))
• The job requirements: the job advertisement and documents showing that you met the conditions the employer set; the burden of proof then shifts to the employer (section 9(a)(1) of the Employment (Equal Opportunities) Law, which applies under section 13)
• Evaluations and feedback: in a dismissal, proof that there was no reason for the dismissal in your conduct or actions shifts the burden to the employer (section 9(a)(2))
• Questions about the disability: write down every demand for information about your disability; as a rule, it shifts the burden to the employer (section 9(c)), except for information needed for accommodations, suitable representation or affirmative action (section 13(b))
• The hearing invitation, the hearing minutes and the dismissal letter, with the dates: a civil claim is filed within five years of the day the cause of action arose, and a job seeker’s claim within three years (section 14 of the Employment (Equal Opportunities) Law)