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Division of Human Rights
Disability is any physical or mental characteristic resulting from:
- Congenital condition of birth
- Functional disorder
that is unrelated to a person's ability to:
- Perform a job
- Qualify for employment or promotion
- Acquire, rent or maintain property
- Use and benefit from educational opportunities, programs and facilities at an educational institution
Employers and public accommodations and services must make good faith efforts to reasonably accommodate any person with a disability, unless this accommodation would impose an undue hardship.
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South Dakota uses the same definition of disability the federal government used in the Americans with Disabilities Act (ADA) of 1990, and we follow the ADA rules and regulations. However, South Dakota law covers all employers, not just those with 15 or more employees.
A person is covered under South Dakota disability law (and ADA) if he or she has a physical or mental impairment that substantially limits a major life activity. Individuals with a record of a substantially limiting impairment or who are regarded as having a substantially limiting impairment are also covered.
A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning or working. Any lesser impairment is not considered substantial and is not covered.
Coverage under disability law does not interfere with an employer's right to hire the best qualified applicant. Nor does it impose any affirmative action requirements. Thus, an individual with a disability must also be qualified to perform the essential functions of the job, with or without a reasonable accommodation.
It is unlawful to ask an applicant whether he or she has a disability or about the nature or severity of a disability. It is unlawful to require the applicant to take a medical examination before making a job offer.
Employers may ask applicants questions about their ability to perform job-related functions, as long as the questions are not phrased in terms of a disability. They may also ask applicants to describe or to demonstrate how, with or without reasonable accommodation, they will perform job-related functions.
After a job offer is made, but before an applicant starts work, an employer may require an applicant to take a medical examination, but only if everyone who will be working in the job category must also take the examination.
Employers may make the job offer conditional on the results of the medical examination. However, if an individual is not hired because a medical examination reveals the existence of a disability, the employer must be able to show that:
- The reasons for not hiring are job-related and necessary for the conduct of the business
- There was no reasonable accommodation that would have made it possible for the individual to perform the essential job functions
For more information regarding this issue, please contact us.
The information provided on this website should in no way be considered legal advice. For specific information about your legal rights, you should consult your personal attorney. If you have a general question, contact us.