Evaluating Disabilities and Accommodation under ADAAA
by Kristin Bauer and Victor Corpuz
The pendulum has swung. After more than 15 years of a narrow interpretation of what it means to be disabled under the Americans with Disabilities Act of 1990, the Americans with Disabilities Amendments Act (effective January 1, 2009), and its implementing regulations (effective May 24, 2011), have ushered in the opposite result. There is now an abundance of information about what conditions may be a disability, and a dearth of information about what is not. Unless an employer is willing to accept a fair amount of risk, a conservative approach and focus on accommodation is the best practice, particularly as disability discrimination charges and litigation are on the rise.
Individualized Inquiry Still Required
Case law interpreting the ADAAA is still underdeveloped. But despite a lack of guidance in the ADAAA and its regulations regarding what is not a disability; courts continue to take an individualized approach. See, e.g., Allen v. SouthCrest Hosp. (migraines not a disability); Culotta v. Sodexo Remote Sites P’ship, (fear of traveling over water not disability); Azzam v. Baptist Healthcare Affiliates, Inc. (stroke or a cerebrovascular accident not a disability). This individualized inquiry is required. See 29 C.F.R. § 1630.2(j)(iv).
Accommodating Employees
Because more conditions are considered covered disabilities under the ADAAA, we can anticipate the case law on accommodations will become more developed with time. But until then, a few things are settled. First, the interactive dialogue the ADA contemplates requires the cooperation of both the employer and employee. Employers should be prepared to show they explored and exhausted all options for accommodations as part of their conservative compliance efforts.
Second, certain job modifications are not reasonable, including eliminating essential job functions, diluting uniformly enforced productivity standards, monitoring medications, changing a supervisor, providing personal use items or creating positions. Third, employers do not have to provide accommodations that will result in undue hardship, which is measured by several factors, including cost of the accommodation, employer resources and operational hardships. In practice, operational hardship is the most persuasive and compelling way for employers to demonstrate undue hardship.
Effectively Using Medical Information
A key—and underused—aspect of compliance and risk management for employers is understanding how and when to obtain medical information from employees. When an employee requests an accommodation for a condition that is not obvious, employers can obtain information to evaluate whether the condition is a disability and what accommodation(s) will enable the employee to perform essential job functions.
In addition to restrictions under the ADA, other state and federal laws may touch this process. The employer properly educated on how to lawfully obtain and use medical information from employees who request accommodations will be more likely to make better informed decisions (and not simply rely on an employee’s statement of ability). This strategy serves several purposes. It helps identify potential accommodations; improves communication in the tri-partite relationship of employee, employer and medical provider; helps combat fraud and abuse; and creates a record of the employer’s accommodation efforts.
An added benefit for employers is that in the event of litigation, the employer will have useful information about the employee’s condition during the period in question, which can be used to show the employee was not disabled or that the accommodation requested would not have been effective or was only one of several effective options (employers can choose among effective accommodations and, therefore, do not have to provide the accommodation the employee wants). An employer who invests in the process of setting up its operations in a way that will allow it to gather and use this type of information in a lawful manner can lower the risk of liability.
Conclusion
For those odd birds such as the authors who consider this stuff interesting, decisions interpreting the ADAAA will provide a good read over the next few years. Unless an employer is willing to be the test case, a conservative compliance approach is the best practice. That means ensuring that your organization is set up to handle the issues that arise with ill and injured workers adeptly, proactively and lawfully. A modest, proactive investment of time and resources can reduce the risk of agony later.
Kristin Bauer and Victor Corpuz are partners at Jackson Lewis LLP. They are regional practice coordinators for the firm’s Disability, Leave and Health Management practice group and can be reached at BauerK@jacksonlewis.com and corpuzv@jacksonlewis.com, respectively.
