Personnel & Employment: Dealing with Disabilities

Staff Writer
Columbus CEO

After the American with Disabilities Act (ADA) was enacted in 1990, employers spent a lot of time, effort and money challenging employees’ disability claims. Over time, court cases effectively narrowed the ADA’s definition of a disability, so that fewer people were covered by the law.

Congress cried foul and responded by enacting the ADA Amendments Act of 2008 (ADAAA).

“Congress felt the cases were wrong and overturned Supreme Court precedent by implementing ADA amendments that loosened the definition to cover more individuals. And there are more qualifying conditions and more accommodation requirements that let workers stay on the job,” says attorney Tara Aschenbrand, a senior associate at Squire Sanders.

“Prior to ADAAA, employees walked a tightrope. They had to show they had an ADA-protected disability, but that they also still qualified for the job. They could fall off either way,” Aschenbrand says.

The ADAAA shifted the focus from a disability inquiry to an individualized interactive process. Employers now must engage employees in a conversation about reasonable accommodations and, as appropriate, provide the accommodations workers need to perform essential job duties.

Every health impairment is not a disability, and everyone with a medical condition is not protected by the ADAAA. Here’s a look at the ins and outs of the law and advice on avoiding violations.

Determining Disability

ADA rules apply only to organizations with 15 or more employees. “A company with fewer than 15 employees is subject to state law,” says attorney Tony Fiore, of counsel for Kegler, Brown, Hill & Ritter. He also serves as government relations director for the Ohio State Council of the Society for Human Resource Management.

To qualify for protection, a job applicant or employee must first be qualified for the job. They also must currently have, or have a record of, a physical or mental impairment that meets the ADAAA definition of disability. Impairments such as epilepsy, diabetes, cancer, HIV infection and bipolar disorder are among the conditions that always constitute a disability. Any other condition must be one that “substantially limits one or more major life activities,” according to the definition.

A disability no longer has to prevent or severely impair a person from performing an activity to be considered a substantial limitation. Episodic impairments or those in remission are considered a disability if they would substantially limit a major life activity when active.

“Major life activities” encompasses caring for oneself, walking, seeing, hearing, communicating and more. The ADAAA expanded the category to include the operation of major bodily functions such as normal cell growth, and the immune, digestive, bowel, bladder, neurological, respiratory, circulatory, endocrine and reproductive systems.

“These changes direct attention to underlying medical conditions,” says Robin Jones, project director and principal investigator for the Great Lakes ADA Center, which includes Ohio. An affiliate of the ADA National Network, it provides assistance to employers, people with disabilities and others.

Job applicants can be asked about their ability to perform job functions, but not about any aspect of a disability—even if the condition is apparent. Once a person is hired, employers can ask for medical documentation, either to support an employee’s ADA accommodation request or if questioning a person’s ability to successfully or safely perform a job function because of a medical condition. “Employees usually bring the employer something like a doctor’s list of restrictions and capabilities,” Aschenbrand says.

Reasonable Accommodations

Unless asked, employers usually don’t have to provide reasonable accommodations under the ADAAA.

“The employer and employee begin an individualized interactive process to determine if the employer can provide a reasonable accommodation, so the employee can continue to work. But the employee must be qualified and able to perform the essential standards of the job,” says attorney Michael Short, Columbus office managing shareholder for Littler Mendelson.

Reasonable accommodations can include wheelchair-accessible modifications, providing a reader or interpreter, or adopting flexible work schedules. Protected employees can be reassigned to vacant, equivalent positions, but it’s not necessary to create a job for them. Unpaid leave must also be considered.

“The EEOC says you can’t have a bright line rule that automatically terminates an employee when he’s used up his maximum time of leave. ADAAA requires additional accommodation of unpaid leave,” Short says.

The law doesn’t entitle an employee to a job. Reasonable accommodations don’t require dropping quality or production standards. If more than one accommodation works, the employer gets to choose.

Employers pay for any workspace modifications, adaptive technologies or productivity adjustments. “It’s tough to quantify in dollars and cents, but I can tell you my clients say they feel the impact,” Short says.

If the necessary accommodation is too difficult or expensive given a company’s size, financial resources or operational needs, it may be considered an undue hardship and the employer becomes exempt.

Violations and Compliance

If an employee doesn’t agree that the employer’s accommodation is reasonable, he can file an Equal Employment Opportunity Commission complaint.

“The EEOC can investigate without a complaint, but it usually involves an employee or group of employees who feel they were discriminated against,” Fiore says. “In this economy, discrimination claims frequently accompany a layoff or termination, and we see a corresponding increase in EEOC charges across the board.”

In 2007—before the ADAAA was enacted—the EEOC saw 17,734 disability-related charges. Claims jumped to 25,742 in 2011. Companies can be liable for compensatory and punitive damages. Fines range from $50,000 to $300,000, based on the number of employees. “With the current makeup of Congress, I don’t expect new employment laws, but we’ll continue to see aggressive EEOC enforcement,” Short says.

“There are lingering concerns about this well-intentioned law, and those concerns center on how EEOC’s rules impact the business community,” Fiore says. “The government is beginning to push the envelope and take the decision for remedies out of the hands of the employer and employee.”

With increasing claims and EEOC scrutiny, businesses need to be vigilant. Dublin-based Cardinal Health is introducing an online training curriculum to keep its staff members up-to-date. “It reflects the new law and compliance requirements,” says Aida Sabo, vice president of diversity and inclusion. “Rolling it out was a goal of our human resources and disabilities employee research groups. We have a number of groups that support certain employee constituencies.”

Cardinal Health’s training also links to the Just in Time toolkit developed by Cornell University’s Employment and Disability Institute. “In 2011, Cardinal Health was a pilot company for the toolkit. The content is extensive and covers best practices, the business case for hiring people with disabilities and a lot of other topics,” says Sabo.

Compliance also requires communication, attorneys and HR executives advise:

  • Document everything associated with each ADA request. “Develop a clear process for requesting an accommodation, and then make it easy for employees to find. Keep them in the loop once a request is received,” Jones says.
  • Review the organization’s ADA policies and practices, as well as job descriptions. “Determine what functions make up the core responsibilities, because the employer must prove the essential functions of each job,” Fiore says.
  • Be cautious about taking employment actions based on any actual or perceived physical or mental impairment. “Focus on performance issues,” Jones says.
  • Regularly revisit existing accommodations to ensure they’re still appropriate.

Lisa Hooker is a freelance writer.

Reprinted from the January 2013 issue of Columbus C.E.O. Copyright © Columbus C.E.O.