Layers of Analysis
The ADA requires a several step analysis, but it is not hard if you work it through step by step, says Farrell. Her remarks came at a recent meeting of the Human Resources Leadership Association in Mystic, Connecticut. Farrell, who is a legal editor at BLR®, was joined in her presentation by attorney Patricia Trainer, SPHR, senior managing editor at BLR.
The basic ADA analysis asks:
- Does the person have a disability?
- Is the person qualified? (Can he or she perform the essential functions of the job with or without reasonable accommodation?)
- Is there a reasonable accommodation? (Is there a possible accommodation? If so, is it reasonable or would it cause undue hardship?)
Does the Person Have a Disability Under the ADA?
There are three possible ways to define a disability, says Farrell: “Actual” disability, “record of” a disability, or “regarded as” having a disability.
Actual Disability
A disability is
a physical or mental impairment that
substantially limits a
major life activity.
“Record of” Disability
There is a history of a disability or the person was misclassified or misdiagnosed as having a disability.
“Regarded as” Disability
There would be a “regarded as” disability if the employer takes adverse employment action because of an impairment that does not rise to the level of a disability or because the employer thinks the person has an impairment or disability.
“Impairment” is a broader term than “disability”; however, the law states that the “regarded as” prong does not apply to impairments that are both transitory (6 months or less duration) and minor. Examples are colds, flus, or an infected finger. The impairment has to be both transitory and minor to fall outside the definition.
No accommodation is required if the person meets the definition of disabled solely on the basis of the “regarded as” prong.
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Physical or Mental Impairment
Physical impairment:
- Any disorder or condition
- Cosmetic disfigurement
- Anatomical loss
- Affecting a body system (for example, the skin or the circulatory system)
Mental or psychological disorder:
- Emotional or mental illness
- Learning disabilities
‘Major Life Activities’
Major life activities include (but the list is nonexhaustive):
- Caring for oneself
- Performing manual tasks
- Walking
- Lifting
- Seeing
- Hearing
- Speaking
- Reading
- Breathing
- Communicating
- Concentrating
- Learning
- Working
- Interacting with others
- Normal cell growth
- Operation of a major body function
‘Substantial Limitation’
The bar for determining whether there is a “substantial limitation” was significantly lowered by the recent amendments to the ADA, says Farrell.
The term is to be construed broadly, and there is to be “no extensive analysis.” The term includes:
- Conditions that are episodic (e.g., epilepsy)
- Conditions that are in remission (e.g., cancer)
Furthermore, conditions are to be evaluated without considering mitigating measures. You look at the potential disability (e.g., diabetes, HIV, cancer) in its untreated state, says Farrell.
Since the American Medical Association (AMA) has determined that obesity is a disease, Farrell adds, obesity may be a disability, especially if it substantially limits walking or standing.
Also, in the new DSM-5 (American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders) there are diseases such as “social communication disorder” that could rise to the level of a disability if they substantially limit a major life activity, Farrell notes. DSM-5 could also have a broader impact under state law, she adds.
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Reasonable Accommodation
Reasonable accommodation allows the employee to perform the essential functions of the job and/or to enjoy the privileges of employment, such as participating in training or attending employer-sponsored social events.
It’s important to note that failure to accommodate creates an independent claim, says Farrell. In other words, the claimant would not have to show discriminatory intent, only a failure to accommodate.
You may be able to avoid damages if you can show a good-faith effort at providing reasonable accommodation by engaging in the interactive process.
Examples of Reasonable Accommodation
- Leave. Leave should not be denied solely on the basis of no firm return date, says Farrell. However, that doesn’t mean leave forever.
- Reserved parking access.
- Modification of training, exams, policies (e.g., flexible attendance policy).
- Restructuring of job (e.g., reassigning of marginal functions).
- Reassignment to a vacant position.
Accommodations that Are NOT Reasonable
- Creating new jobs,
- Displacing other employees,
- Violating other employees’ rights (e.g., violating a seniority system),
- Lowering production standards,
- Eliminating an essential job function,
- Providing personal use items (e.g., hearing aids, wheelchair), and
- Excusing violation of a uniformly enforced conduct rule (e.g., violence, destruction of equipment), but be sure you haven’t made exceptions for others.
Not the Employee’s Choice
You do not have to provide the particular accommodation that the employee prefers.
Undue Hardship
Employers do not have to provide an accommodation if doing so would result in undue hardship, defined as a significant difficulty or expense. Undue hardship requires an individual analysis based on:
- Cost of the accommodation.
- Effect on employer.
- Type of employer’s operation.
- Effect on other employees (but not just if it would lower morale because coworkers wouldn’t like it. However, if it forced other employees to work significant overtime, it might be an undue hardship.).
- Impact on facility.
Association Discrimination
The ADA prohibits discrimination that is based on association with a person with a disability, for example, terminating a wife because you think her husband’s disability will take her away from work too often.
In tomorrow’s Advisor, how to handle coworkers who want to know, “How come Sandy gets to come in late?” plus an introduction to BLR’s unique collection of prewritten job descriptions, SmartJobs.