Analyzing Disability Issues in a Post-ADAAA World?
Shortly after the passage of the ADA Amendments Act of 2008 (ADAAA), many commentators asserted that courts and juries would (or should) no longer scrutinize whether a plaintiff was "disabled" as defined by the statute and would (and should) instead focus on the alleged discriminatory practice or action. In reality and application, it has not been so simple for employers on the front end. Should a questionable claim of "disability" or request for accommodation under the ADA still be carefully reviewed to determine if the individual has a disability as defined in the statute? Absolutely. The ADAAA certainly has not eliminated the need for a preliminary analysis of "disability" on a case-by-case basis.
The text of the ADAAA expresses Congress' intention to broaden the definition and coverage of the term "disability." But, it in no way eliminated the need to establish the existence of a disability in order to assert coverage under the Americans with Disabilities Act of 1990 (ADA). As one court stated after the amendment went into effect, "In other words, though the ADAAA makes it easier to prove a disability, it does not absolve a party from proving one." In fact, courts throughout the country continue to delve into the "disability" analysis. Yes, in most cases they do find a "disability" exists. But, employers should not take this to mean that all employees presenting medical conditions or issues are necessarily considered disabled under the statute or that a "disability" analysis need not occur. To the contrary, employers should continue to do a "disability" analysis with the caveat that they should heed Congress's directive – construe the law with a lens directed in favor of broad coverage, and, in most cases move to the interactive process if an accommodation is requested.
DON'T presume that ALL employees presenting medical conditions are necessarily disabled as defined by the ADA. There are still limits, and you don't want to get stuck in a "regarded as" claim because you presumed disability.
DON'T be afraid to do your analysis of whether the employee actually has a "physical or mental impairment" (viewing these terms broadly) and then determine whether said impairment "substantially limits one or more major life activities" of the individual. Again, if you jump past this step, then you risk a "regarded as" claim. Consult legal counsel if you have questions or concerns and be careful when preparing written documentation of this analysis.
DO determine whether the individual is qualified or not. Definition of Qualified: The individual with a disability has the background required for the job, and he/she can perform the essential functions of the job (either without any accommodation, or with a reasonable accommodation). NOTE: This tip necessitates having up to date job descriptions, or at least having a good handle on the essential functions of each position.
DO have a written reasonable accommodation/interactive process policy. And, document the actual process/steps taken with the employee. One of the major goals of the ADAAA was to get employers and employees talking more with each other when it comes to reasonable accommodations requests. Do it! Document it! Don’t ignore the question of whether this person is disabled, but don't spend so much energy on it that you lose sight of the interactive process.
DO use common sense. If the fix, i.e., an accommodation, is something that you would probably be willing to do regardless of whether the individual actually has a disability, then why not just do it? But, keep in mind that doing it for one person may create a rule for treatment of future employees with similar requests.
DO train your managers, supervisors, human resources personnel and all personnel that are responsible for providing reasonable accommodations on the appropriate means, manner and method of handling reasonable accommodation requests – or, better yet set up a policy (and train managers and supervisors on the same) that instruct all personnel to refer such questions, complaints and inquiries to human resources.
Please contact Paul Sweeney
at (317) 236-5894 or firstname.lastname@example.org
, or another member of Ice Miller LLP's Labor, Employment and Immigration Practice Group
if you have any questions regarding this article.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.