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RISK MANAGEMENT

Two ADA surprises: odd disabilities and attorney’s fees that can hit the sky

Two surprising points about the ADA.

First, what the office doesn’t think is a disability could well be one.

And second, the ADA applies to access to public places such as stores and restaurants – and offices.

And while the law “has a noble purpose,” along the way “it’s been hijacked by a subset of plaintiffs who have made it their life’s work to target as many public accommodations as possible for monetary gain,” says James S. O’Brien, Jr., an attorney with Pryor Cashman in New York.

Watch out.

You mean that’s a disability??

The ADA can get confusing for employers, because there’s no bright line on what constitutes a disability, O’Brien says.

And for that reason, his advice is that when somebody asks for an accommodation or a provision for any inability, consider the problem a disability and allow the accommodation.

Some disabilities come as a surprise.

One, for example, is morbid obesity, which is extreme obesity, usually defined as a Body Mass Index of 40 or more.

A case decided last summer involved a man who weighed in excess of 600 pounds. He worked at a manufacturing company where 10% of his job time was spent driving a forklift. The forklift required wearing a seat belt, and the belt wouldn’t go around him, so he asked for a seatbelt extender. The company, however, didn’t supply the extender but terminated him instead, saying he could no longer do his job because of his weight.

The man sued for disability discrimination, the court found that morbid obesity does indeed fall under the definition of a disability, and the company had to pay $55,000 in damages.

In a similar case, a woman who weighed more than 400 pounds was fired from a child-care job on the grounds that she was too obese to perform CPR in an emergency. Again, obesity was determined to be a disability, and the employer had to pay $125,000.

Get ready for far-fetched requests

The ADA is expanding further to cover more mental issues as disabilities.

“There are a lot of syndromes that never used to exist but do now,” O’Brien says. Post traumatic stress disorder is an example.

And employers are getting hit with some surprising things such as, “I need to come in late because I have restless leg syndrome and can’t sleep.”

In one situation, an employee even showed up with a note from an out-of-state physician saying the woman was nervous and had a hard time functioning and that the doctor had prescribed that she bring a dog to work.

And the employer was faced with the issue of trying to figure out a way for someone to walk the dog during the day.

Requests like that may sound absurd, he says, “but the office has to show that it is being reasonable.” The manager “can’t just say to no” to anybody who requests an accommodation. The courts want to see that the office made at least some effort to work with the employee and come up with a reasonable accommodation.

He adds that accommodations have to be made for current employees as well.

If an employee breaks a hip and becomes disabled, the office needs to help out.

If the disability is temporary, it might be possible for co-workers to carry the wheelchair up steps. But if it’s permanent, the chair-carrying is not reasonable, and the office needs to get a ramp.

The employee is entitled to keep the job as long as the performance requirements are met.

Keep silent on it

Along with viewing every limitation as a potential disability, never mention the problem as a contributing factor to any action against the employee, O’Brien cautions. Do so, and the door is wide open to a complaint of “you fired me because of my disability,” he says.

Whenever an action is taken against an employee, the office has to say (and be able to prove) unequivocally “you are being disciplined because you are not performing,” O’Brien says.

What’s more, there has to be “a straightforward neutral record” of the action with never a mention of the disability – or any other discriminatory factor.

More still, make it clear to the supervisors that what anybody in management says “can come back to bite the office.” Take it to the bank that a remark such as, “It takes her 30 minutes to make it across the room” will reappear in a discrimination claim.

Hire with two blind eyes

The same theory applies to hiring.

Any employer “is entitled to hire the best candidate for the job,” O’Brien says.

But what an employer cannot do is not hire somebody because of a disability.

In hiring a receptionist, for example, the selection “has to be all skills-based,” he explains. It can’t be based even partly on how the office wants that person to look.

For safety, be “proper and formal” in conducting the interviews and choose whoever seems best suited for the job, he says. If someone mentions a factor that could in any way be considered a disability, respond with “we are blind to disabilities in this office, and we will make accommodations for our employees as required by the ADA.”

Make that clear, “and it’s tough for a litigant to prove discrimination.”

A gross example of a violation based on appearance, he says, was a New York fashion store that had a number of African American women employees. The regional manager came in and said they were not the type of women the brand wanted to promote, and they were replaced. It was an invitation to a lawsuit.

And don’t argue hardship

The government has a brochure on the ADA access requirements for medical offices. It is titled “Access to Medical Care for Individuals with Mobility Disabilities.”

There is also a general office checklist titled “Fast Facts.” Click here to view.

The ADA doesn’t ask for the moon. It requires only that an employer provide a reasonable accommodation. And reasonable means it doesn’t create undue hardship for the office.

So in that regard, O’Brien’s advice is “think twice before going down the undue hardship road.” Unless the accommodation “is a black-and-white issue like building a new elevator in a small building,” it’s likely going to pass muster with ADA.

And the fight will not be pleasant.

All the plaintiff has to say is, “Show me your general ledger,” and it becomes clear whether the request really does pose an undue hardship. When a business is profitable, a change such as putting in a ramp or adding a new computer to help someone who is vision impaired is going to be viewed as reasonable. And the office will be found guilty of ADA discrimination for not providing it.

Added to that, he says, when a case gets to that point, the discovery is intrusive, and the legal costs get high. Stay out of it if at all possible.

What about the argument that the accommodation will adversely affect the business?

It’s rare such would happen. An example might be a business that uses its staircase for weddings and fashion shows and events where people promenade down the steps. Adding a lift to that staircase could possibility injure the business.

But in general, O’Brien says, “that’s not a good way to go.” An argument to that effect won’t hold up.

$500 fine; much more in attorney’s fees

Equally dangerous is the ADA as it applies to access to private entities that are open to the public. And that includes medical offices.

Make sure the office itself meets ADA standards for access, O’Brien says, pointing out that a person with a disability “is no different from John Q. Public. He is entitled to access to the business.”

And there are some people who seek out ADA violations in public places, many times as a means of ensuring complete access for disabled persons – and many times for questionable reasons.

For example, one New York man, Zoltan Hirsch, who lost both legs in a traffic accident has brought more than 100 ADA claims against public places.

The most he is entitled to as a plaintiff is $500, because the ADA does not impose damages for violations.

But that’s not the case for his attorneys.

The ADA allows for reasonable attorney’s fees. And some attorneys are making a living off those fees.

The action itself is usually a matter of the attorney telling the office “you have these violations.” And the office responds with “we will address all of them.” And the office doesn’t mind doing that because in most cases, the changes that have to be made are minor – perhaps adding a ramp or changing a round doorknob to a lever handle.

But then comes the bomb. The attorney says, “OK, now we have to talk about my fees.” And those fees can run to thousands of dollars without the lawyer’s doing anything.

ADA representation “is not rocket science,” O’Brien says. Once an attorney has done one case, it’s easy to repeat the process over and over. And  he points out that when there’s “an ambitious client” who files a large number of claims and who is represented by the same attorney for each one, the money mounts up.

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