The ABCs of the ADACassandra B. Meynard, J.D.

The Americans with Disabilities Act

(ADA) applies to all employers with over15 employees and protects employeesfrom discrimination based on disability In

much the same way that TitleVII protectsemployees from discrimination based onsex, race, religion, or national origin.

Under the ADA, an individual Is con

sidered to have a "disability" if (s)heeither (1) has a physical or mentalimpairment which substantially limitsone or more major life activities, (2) has arecord of such impairment, or (3) isregarded by the covered entity as having such impairment.

In order to avoid disability discrimination suits, employers must understandtheir obligations, update their policies,and train their managers and HR staffabout the ADA. This is especially important because in enacting the law.Congress instructed that courts must nolongerfocuson whether an employee is"disabled," but on whether the

"employer Is complying with Itsobligations under the law."

What Is a"Disability"?Adisability isa flexible term under the

ADAand is defined broadly.

• Physical/Mental Impairment. Underthe ADA, "physical or mental impairments" include any physical conditionaffecting the body's major systems, forexample, the neurological, muscu-loskeletal, or special sense organs. It alsocovers psychological conditions such asdepression, mental illness. An impairment may be episodic or in remission,yet still be considered an impairmentunder the ADA. Similarly, an Impairmentlike diabetes is still an impairment, evenifit is controlled by medicine.

• Substantially Limits. An impairment

is a disability ifit substantially limits theability of an individual to perform amajor life activity as compared to mostpeople inthe general population.

• Major Life Activities. The ADA offerswhat is described as a "non-exhaustive"

list of'major life activities"which includereading, learning, working, "communi-cating,""concentrating,""thinking,""caring

for oneself" walking, eating and sleeping. As a second category of'major lifeactivities" includes impairments thatinterfere with the "major bodily systems

or organs" (i.e., neurological, reproductive, digestive, respiratory, circulatory).

An individual whose impairment sub-

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stantially limits a major life activity neednot demonstrate a limitation in the abil

ity to perform activities ofcentral importance to daily life. For example,someonewith a 20-pound lifting restriction neednot also show that he is unable to perform activities of daily living that requirelifting inorder to be considered substantially limited. An impairment that "substantially limits" one major life activityneed not limit other major life activitiesin order to be considered a disability.

Protection for Employees"Regarded As" Disabled

In order to qualify as "regarded as disabled" under the ADA, an Individual

mustonly prove that his or her employ

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Cassandra B. Meynard

er took discriminatory action againsthim or her because the employerthought the employee had a disability.

What the ADA Means ForEmployers

The implications of the ADA are profound for employers. Under the ADA,one can argue that anyone treated forachronic condition (or one that risksreturning) will be forever "disabled"-even ifthat person has no signs or symptoms. In fact, because of the naturalaging process, most peoplewill developa condition at some point that will beconsidered a disability under the ADA.

Combining the ADA with the FamilyMedical Leave Act ("FMLA"), every

employee who has a"disability"will nowlikely also qualify for FMLA leave.Employers may see more demands forintermittent FMLA leave, as well as more

employees seeking longer periods oftime off. Remember, use of FMLA leaveis not a basis to discipline an employeefor poor attendance.

What Accommodations Must BeProvided?

The ADA clarifies that only individualswho meet the first (actual disability) andsecond (record of a disability) parts ofthe definition are entitled to accommo

dations. Individuals who only meet thethird part (regarded as) are not entitledto accommodations.

Employers should be mindful that areasonable accommodation does not

have to be tied to the major life activitythat established that the employee hasa disability. For example, a person withcancer may establish that he has a disability because he Is substantially limited

in normal cell growth, which Is listed asa major life activity under the "bodilyfunctions"category in ADA. However,hisaccommodation request may be relatedto nausea resulting from medical treatment. Once the employee establishesthat he-has a disability, then the employer must consider providing accommo-

these policies actually work.

• Update the company policy's definition ofa"disability."

• Update Job descriptions and document the essential functions of everyJob. Make sure that job descriptions areaccurate and define the "essential" func

tions of every position.

Under the ADA, an individual is considered to have a "disability" if (s)he either (1) has a physical or mental impairment which substantially limits one or more major lifeactivities, (2) has a record of such impairment, or (3) isregarded by the covered entity as having such impairment.

dations for any limitations he has as aresultof his impairment, notjust the limitation that established his disability.

Remember that the reasonable

accommodation obligation under theADA is flexible. Employers can chooseamong effective accommodationoptions and do not always have to provide the requested accommodation.Employers do not have to provideaccommodations that pose an unduehardship, nor do they have to provide asreasonable accommodations personaluse items needed in accomplishingdaily activities both on and off the Job.Employers do not have to make anaccommodation for an individual who Is

not otherwise qualified for a position,nor (Remove essential functions, create

new Jobs, or lower production standardsas an accommodation.

Tips for Employers• Review the company's ADA policiesand processes to make sure they accurately reflect the law, and make sure

• Review Job accommodation procedures. The ADA does not requireemployers to hire unqualified applicantswith disabilities, nor does it requireemployers to retain employees who canno longer perform the essential functions of theirjobs because of a disability,but it does prohibit employers fromusing unnecessary qualification standards to weed out applicants with disabilities.

• It Is crucial to ensure that the "accom

modation process"happens and is documented. There must be a record that

the "interactive process" was followed inevery case. Do not make knee-jerk decisions, assuming that the employee isnot"disabled,"that there isno"lightduty,"

and that every employee must be 100%healed before they can return to work.The company may have to err on theside of "over-accommodation" and provide reasonable accommodations

whenever it can.

• Communicate with employees. Many

problems occur because employers donot let employees know, for example,how their performance needs toimprove, the status of their accommo

dation requests, or why an accommodation request was denied.

• Employers should avoid makingassumptions or comments about

employees' medical conditions, whichcould lead employees to believe thatdecisions were made on the basis of

their real or perceived disabilities, even ifthat's not the case. In general, it is theemployee's responsibility to let theemployer know that a conduct or performance problem is disability-relatedand to request an accommodation toovercome the problem. There is no reason foran employer to bring up medicalIssues first.

• Employers must train all supervisors,

managers and human resources personnel. They are often the first to hearrequests for light duty, and other claimsof disabilities. They need to understandhow to respond, or they may create liabilities for the company. If nothing else,employers should train those on theirfront lines to refrain from mentioningmedical conditions unless relevant, to

recognize accommodation requests,and to remember who to contact for

assistance.

• Document everything. Because thefocus of the ADA ison whether employers complied with their obligations, documentation of actions and decisions can

be very important if an employeealleges discrimination. •

Cassandra Meynard is an employmentattorney with Mesch, Clark & Rothschild,RC, in Tucson, Arizona.

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