W. Va. Code R. § 77-1-4

Current through Register Vol. XLI, No. 44, November 1, 2024

Section 77-1-4 - Employment Discrimination Prohibited

4.1. No employer shall, on the basis of disability, subject any qualified individual with a disability to discrimination in employment as it relates to:

4.1.1. Recruitment, advertising, and processing applications;

4.1.2. Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;

4.1.3. Rates of pay or any other form of compensation or changes in compensation;

4.1.4. Job assignments, job classifications, organizational structures, position description, lines of progression, and seniority lists;

4.1.5. Leaves of absence, sick leave, or any other leave;

4.1.6. Fringe benefits, such as medical, hospital, accident, disability, life insurance, retirement benefits, unemployment benefits, and profit sharing and bonus plan, whether or not administered by the recipient;

4.1.7. Selection and/or financial support for training, including apprenticeship, professional meetings, conferences, and other related activities and leaves of absence to pursue training;

4.1.8. Employer-sponsored activities, including social or recreational programs;

4.1.9. Any other terms, conditions, or privileges of employment.

4.2. "Qualified Individual with a Disability" means an individual who is able and competent, with reasonable accommodation, to perform the essential functions of the job, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description may be considered evidence of the essential functions of the job. A job function may be considered essential for several reasons, including but not limited to the following:

4.2.1. The function may be essential because the reason the employment position exists is to perform that function;

4.2.2. The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

4.2.3. The function may be essential because of the amount of time spent on the job performing the function.

4.3. "Able and Competent" means that, with or without reasonable accommodation, an individual is currently capable of performing the work and can do the work without posing a direct threat (as defined in Section 4.8) of injury to the health and safety of either other employees or the public.

4.4. "Reasonable Accommodation" means reasonable modifications or adjustments to be determined on a case-by-case basis which are designed as attempts to enable an individual with a disability to be hired or to remain in the position for which he was hired. Reasonable accommodation requires that an employer make reasonable modifications or adjustments designed as attempts to enable an individual with a disability to remain in the position for which she/he was hired.

4.5. An employer shall make reasonable accommodation to the known physical or mental impairments of qualified individuals with disabilities where necessary to enable a qualified individual with a disability to perform the essential functions of the job. Reasonable accommodations include, but are not limited to:

4.5.1. Making faculties used by individuals with disabilities, including common areas used by all employees such as hallways, restrooms, cafeterias and lounges, readily accessible to and usable by individuals with disabilities;

4.5.2. Job restructuring, part-time or modified work schedules, reassignment to a vacant position for which the person is able and competent (as defined in Section 4.3) to perform, acquisition or modification of equipment or devices, the provision of readers or interpreters, and similar actions;

4.5.3. Appropriate adjustments or modifications of examinations, training materials or policies; and

4.5.4. The preparation of fellow workers for the individual with a disability, to obtain their understanding of the limitations of the disability and their cooperation in accepting other reasonable accommodations for the individual with a disability.

4.6. An employer shall not be required to make such accommodation if she/he can establish that the accommodation would be unreasonable because it imposes undue hardship on the conduct of his/her business. The term "undue hardship" means an action requiring significant difficulty or expense, when considered in light of the factors set forth in the following subparagraphs (4.6.1 - 4.6.5);

4.6.1. The overall financial resources of the employer; the overall size of the employer's operation with respect to the number of its employees; the number, type and location of its facilities;

4.6.2. The nature of the employer's operation, including composition, structure and functions of the employer's workforce; the geographic separateness, administrative or fiscal relationship of the employer's facility or facilities;

4.6.3. The nature and cost of the accommodations needed (taking into account alternate sources of funding, such as Division of Vocational Rehabilitation); the effect on expenses and resources, or the impact otherwise of such accommodation upon the employer's operation;

4.6.4. The possibility that the same accommodations may be able to be used by other prospective employees;

4.6.5. The requirements of the West Virginia Law on Handicapped Persons and Public Buildings and Facilities, W. Va. Code '18-l0F-1 et seq. Any changes or alterations required due to the failure of the employer (or his lessee, lessor, or predecessor in title) to conform to the requirements of said statute will be considered per se reasonable.

4.7. Each individual's ability to perform a particular job must be assessed on an individual basis. An employer may refuse to hire or may discharge a qualified individual with a disability if, even after reasonable accommodation, the individual is unable to perform the essential functions of the job without creating a substantial hazard to his/her health and safety or the health and safety of others. However, any such decision shall be used upon the individual's actual abilities, and not upon general assumptions or stereotypes about persons with particular mental or physical disabilities.

4.8. In deciding whether an individual poses a direct threat to health and safety, the employer has the burden of demonstrating that a reasonable probability of a materially enhanced risk of substantial harm to the health or safety of the individual or others cannot be eliminated or reduced by reasonable accommodation. The employer's determination that an individual poses a "direct threat" shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgement that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, factors to be considered include:

4.8.1. The duration of the risk;

4.8.2. The nature and severity of the potential harm;

4.8.3. The likelihood that the potential harm will occur; and

4.8.4. The imminence of the potential harm.

4.9. An employer shall not discriminate against an applicant or employee because of a disability or impairment which is not presently job related but which may worsen and become job related in the future; Provided, that this section shall not be construed so as to impose an undue hardship on the employer. In determining whether the requirements of this section impose an undue hardship on the employer, the Commission shall consider:

4.9.1. The length, cost, and nature of training required for the job;

4.9.2. The length of time that is likely to elapse before the condition becomes job related;

4.9.3. The normal turnover for the position;

4.9.4. The factors listed in Rule 4.6.

4.10. W.Va. Code '5-11-9 provides an exception to the prohibition of discrimination in employment when such discrimination is based on a bona fide occupational qualification (B.F.O.Q.). The Commission construes the B.F.O.Q. very narrowly and requires that, in order to establish a B.F.O.Q. which excludes all persons with a particular disability, an employer must prove that all or virtually all persons with that particular disability would be unable to perform the essential functions of the job involved.

4.11. The following are examples of actions which do not warrant application of the B.F.O.Q. exception and which constitute unlawful discrimination with respect to disability:

4.11.1. Refusal to select an individual with a disability because of the preference (or assumptions about the preferences) of co-workers, customers, or clients;

4.11.2. Refusal to select an individual with a disability or a position because of uninsurability or increased cost of insurance (whether actual or anticipated).

4.12. The following is an example of a B.F.O.Q. based upon disability which may be permitted:

4.12.1. Physical standards for employment which are directly related to safe performance of the job and are based upon complete factual information concerning working conditions and hazards, and essential physical requirements of each job.

4.13. When an individual acquires a disability in the course of employment, the employer shall, if possible through reasonable accommodation, continue the individual in the same position, or may reassign the employee to a new position for which she/he is qualified or for which, with training, she/he may become qualified. The requirements of this subsection shall be interpreted in such a way as to be consistent with W.Va. Code '23-5A-l, which prohibits employers from discriminating against employees because they have applied for or received Worker's Compensation benefits.

4.14. An employer shall offer employees with disabilities the same opportunity as nondisabled employees to obtain health and life insurance benefits, and no individuals with disabilities shall, on the basis of disability, be denied health and life insurance benefits provided in connection with employment, unless otherwise authorized by law. It shall not be an unlawful discriminatory practice for an employer to observe the provisions of any bona fide pension, retirement, group or employee insurance, or welfare benefit plan or system not adopted as a subterfuge to evade the provisions of this rule.

4.15. If an applicant is refused employment, or an employee is discriminated against in any term, condition, or privilege of employment, because of a disability, the burden shall be upon the employer to establish that the refusal or discrimination was based upon a bona fide occupational qualification, (as defined in Section 4.10.) or that, even with reasonable accommodation, the employee would be unable safely and adequately to perform the essential functions of that job, or that employment of an individual with a disability would impose an undue hardship upon the employer under the circumstances described in Section 4.6.

W. Va. Code R. § 77-1-4