2020 Delaware Code
Title 19 - Labor
Chapter 7. Employment Practices
Subchapter III. Persons With Disabilities Employment Protections
§ 722 Definitions.
As used in this subchapter, unless the context otherwise requires:
(1) The terms “person,” “employee,” “employment agency,” “labor organizations,” “Secretary” and “review board” are defined in § 710 of this title.
(2) “Disability” means any condition or characteristic that renders a person a person with a disability as defined in paragraph (4) of this section.
(3) “Employer” means a person qualifying as an employer under § 710 of this title.
(4) “Person with a disability” means any person who:
a. Has a physical or mental impairment which substantially limits 1 or more major life activities;
b. Has a record of such an impairment; or
c. Is regarded as having such an impairment. As used in this paragraph the term:
1. “Major life activities” means functions such as, but not limited to, caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.
2. “Has a record of such impairment” means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits major life activities.
3. “Is regarded as having an impairment” means:
A. Has a physical or mental impairment that does not substantially limit major life activities but that is treated as constituting such a limitation;
B. Has a physical or mental impairment that substantially limits major life activities because of the attitudes of others; or
C. Does not have a physical or mental impairment but is treated as having such an impairment.
This term is intended to be interpreted in conformity with the federal Rehabilitation Act of 1973 [29 U.S.C. § 701 et seq.], as amended, and, consistent with § 728 of this title, shall be further defined by the Secretary through regulation to clarify and delimit its scope following adequate public notice and comment.
Enforcement of this subchapter by persons qualifying for protection solely under this paragraph (4)c. of this section shall be deferred until the issuance of the Secretary's final regulation.
4. “Substantially limits” means that the impairment so affects a person as to create a likelihood that such person will experience difficulty in securing, retaining or advancing in employment because of a disability.
5. “Person with a disability” shall not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.
(5) “Qualified person with a disability” means a person with a disability who, with or without reasonable accommodation, can satisfactorily perform the essential functions of the job in question:
a. Provided that the person with a disability shall not be held to standards of performance of essential job functions different from other employees similarly employed; and
b. Further provided that the disability does not create an unreasonable and demonstrable risk to the safety or health of the person with a disability, other employees, the employer's customers or the public.
(6) “Reasonable accommodation” means making reasonable changes in the work place, including, but not limited to, making facilities accessible, modifying equipment and providing mechanical aids to assist in operating equipment, or making reasonable changes in the schedules or duties of the job in question that would accommodate the known disability of a person with a disability by enabling such person to satisfactorily perform the essential duties of the job in question; provided that “reasonable accommodation,” unless otherwise prescribed by applicable law, does not require that an employer:
a. Provide accommodations of a personal nature, including, but not limited to, eyeglasses, hearing aids or prostheses, except under the same terms and conditions as such items are provided to the employer's employees generally;
b. Reassign duties of the job in question to other employees without assigning to the employee with a disability duties that would compensate for those reassigned;
c. Reassign duties of the job in question to 1 or more other employees where such reassignment would significantly increase the skill, effort or responsibility required of such other employees from that required prior to the change in duties;
d. Make changes to accommodate a person with a disability where:
1. For a new employee the cost of such changes would exceed 5 percent of the annual salary or annualized hourly wage of the job in question; or
2. For an existing employee the total cost of the changes would bring the total cost of changes made to accommodate the employee's disabilities since the employee's initial acceptance of employment with the employer to greater than 5 percent of the employee's current salary or current annualized hourly wage; or
e. Make any changes that would impose on the employer an undue hardship, provided that the costs of less than 5 percent of an employee's salary or annualized wage as determined in paragraph (6)d. of this section shall be presumed not to be an undue hardship.
