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Watch out for ADA claims; they are now easier to file and a lot easier to win

(Note: The ADA applies to offices with 15 or more employees. Depending on the practice’s business structure, the physicians may be included in that count.)

An amendment to the Americans with Disabilities Act is putting more employees under ADA protection.

It’s called the ADA Amendments Act, or ADAAA. It went into effect in 2008, and it has broadened the definition of disability so it’s easier for an employee to claim ADA protection and easier to win the claim.

In the past, people who brought claims had a hard time proving they actually had disabilities, says Ann Kiernan, a New Brunswick, NJ, attorney who focuses on preventive law for employers. Kiernan is also a trainer in management law.

Disabilities were narrowly defined to the point that employees won ADA discrimination claims only 10% of the time, mainly because their conditions didn’t pass muster as full-fledged disabilities.

By contrast, the employee win rate in other kinds of discrimination claims is 60%.

The ADAAA, however, “stops the fighting over whether someone is disabled.” And it does so by leaning heavily in favor of the employee so that a large number of medical conditions can now be considered disabilities and the people who have those conditions can get the nondiscrimination and reasonable accommodations the ADA provides.

As a result, employers are seeing more ADA claims and are having to provide more accommodations. In fact, the Equal Employment Opportunity Commission estimates the amendment will put from 12 million to 38 million more people under ADA coverage and that employers will have to provide from 400,000 to 1 million more ADA accommodations each year at a cost of from $60 million to $180 million.

‘Regarded as’ is a term to watch

The ADA applies to any physical or mental impairment that substantially limits one or more major life activities, Kiernan explains.

And it covers anybody who has such an impairment or has a history of it or who is “regarded as” having it.

That hasn’t changed. What has changed is that it’s now easier for people to establish coverage in the “regarded as” part of the law.

An employer “regards” an individual as having a disability if it takes any adverse action such as termination or demotion or not hiring because of an impairment or because the employer believes there is an impairment.

Until now, that provision has applied only if the employer perceived the disability as substantially limiting a major life activity. And that provided a built-in excuse. All an employer had to say was “we realized there was an impairment but we didn’t think it limited a major life function.”

The ADAAA has done away with that argument. It says that whether a condition is “regarded as” a disability depends not on whether the employer thinks it limits a life function but on how the employer treats the individual.

If the employer takes some adverse action against somebody because of a disability – whether the disability is real or only perceived – ADA protection steps right in.

Limited, but not so substantially

Another area that loosens the requirements is that of “substantially limits.”

In the past, substantially limiting a life activity was defined as significantly restricting it. The ADAAA, however, defines substantially only as “greater than moderate,” Kiernan says.

The new amendment also says the term substantially has to be interpreted by the employee’s individual circumstances and more in favor of a yes than a no.

For example, before the amendment, a condition that lasted only a few months wasn’t considered substantially limiting. Now it can be.

The same is true for inactive disabilities. Before the amendment, employees couldn’t always get ADA protection for a disability that wasn’t active. An employee with cancer, for example, came under the ADA only if the cancer was active, not if it was in remission.

Now, however, it doesn’t matter if a condition is active or not. If it limits a major life activity when it’s active, the ADA applies.

Thus, if there’s a chronic condition where the symptoms come and go, that’s considered a disability, even if the life activity is only affected when the impairment is active.

That would apply, for example, to epilepsy, hypertension, asthma, diabetes, and bipolar disorder. It would also apply to cancer that’s in remission but that could return and limit a life activity.

Along with that, “mitigating measures” can no longer be taken into consideration when deciding if there’s a substantial limitation.

Before the amendment, ADA protection didn’t apply if a condition could be controlled or mitigated with things such as medication or hearing aids or an artificial limb. Somebody who had a medical condition that would be limiting if left untreated was not disabled if the condition was under control.

But that’s no longer the case. The mitigating elements don’t get considered at all. For example, an employee with a hearing problem that limits a major activity is considered disabled even if the hearing issue is corrected by a hearing aid.

There is an exception to that, however. A vision problem that’s corrected by ordinary eyeglasses or contact lenses is still not a disability.

But outside glasses and contact lenses, no matter how successful the mitigating factor may be in allowing the person to overcome the disability, “that person is still disabled.”

Even medicine can be a disability

Another change the ADAAA has brought is a clarification that medicine can create a disability even if the disease it’s treating doesn’t require an accommodation.

For example, if an employee is taking a diuretic that creates a need for frequent restroom breaks, taking the diuretic can be ADA-covered and the office might have to allow the extra break times.

Don’t try to fight it

What it all comes down to, Kiernan says, is that employers need to quit haggling over whether a condition qualifies as an ADA disability or not. Under the broadened definition laid out in the ADAAA, it probably does.

Spend the time instead on making sure the office complies with the ADA, and that starts by making an honest effort to decide if an employee needs an accommodation.

Be aware that the employee doesn’t have to mention the ADA when asking for an accommodation. The request can be as vague as “I’m having trouble on the job because of X condition, and I need Y to help me with that.”

Be aware too that the request doesn’t have to come from the employee. It can come from a spouse, a family member, or a doctor. Or the manager might simply recognize the need for an accommodation.

Any time there’s a request for a change in somebody’s job because of a mental or physical issue, “consider it a request under the ADA.”

Then find out what accommodation is needed. But be careful. Don’t ask for too much information. All the office needs to know is what the disability is and what accommodation is necessary.

Kiernan recommends asking no more than three questions:

  • What is the condition?
  • What is the restriction?
  • What accommodation do you need? or How can we help you be successful in your job?

The office can ask for physician verification of the condition. If somebody says, for example, “my back is hurt so I need a different type of chair,” it’s permissible to say “I need a note from a doctor to find out what you need.”

And if the employee refuses to provide it, there’s no need to go further. Unless the employee follows the ADA requirements, there’s no protection.

The accommodation doesn’t have to be exactly what the employee requests. It only has to be reasonable, which means “it gets the job done.” For that reason, Kiernan’s advice is not to ask the doctor what accommodation the person needs. The doctor might recommend something “that’s too costly and isn’t needed.”

A good list of accommodations

The Department of Labor’s Job Accommodation Network has a database that lists accommodations that can fulfill the ADA requirements for various conditions. Go to and at the top of the page click on “Search Accommodations Database.” Then click on the general impairment (such as arthritis or cancer) and after that, click on the specific problem to get a list of accommodation options.

Kiernan points out that “the courts look favorably” on any employer who uses the JAN source to determine what accommodation to provide.









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