The Law
- The Americans with Disabilities Act (“ADA”) prohibits discrimination and harassment disability.
- The ADA applies to all employers with 15 or more employees.
- Most state fair employment laws prohibit disability discrimination as well.
- These state laws usually apply to employers with fewer than 15 employees.
Did You Know?
- The ADA was amended on Semptember 25, 2008 by the Americans with Disabilities Amendments Act (“ADAAA”).
- The ADAAA was effective January 1, 2009.
- The ADAAA revised the definition of disability to broaden it to include more impairments that substantially limit a major life function.
- It also overruled some case law and made it clear that courts should analyze the issue of whether an individual has a disability without taking into consideration any mitigating measures such as prosthetic or assistive devices.
- The ADAAA also clarified that conditions that are episodic or in remission such as lupus will be considered disabilities if they substantially limit a major life function.
Can You Afford To Not Comply?
- In EEOC v. Federal Express recently affirmed by the Fourth Circuit Court of Appeals, a jury award against Fed Ex in the amount of $100,000 in punitive damages and compensatory damages in the amount of $8,000 was upheld for Fed Ex’s failure to provide a reasonable accommodation of a sign language interpreter to a deaf baggage handler
- A jury awarded a plaintiff 13 million in punitive damages for disability discrimination under the ADA (award subsequently reduced to maximum allowable under the ADA) when Chuck-E-Cheese’s allegedly terminated the mentally retarded, autistic, non-verbal janitor because the manager did not want “those people” working in our restaurant.
- In EEOC v. CEC Entertainment, there was a jury award of $13 million in punitive damages to a former employee with "intellectual disabilities" who was fired from his job as a janitor at a restaurant (award subsequently reduced to maximum allowable under the ADA)
- In EEOC v. Echostar, there was a jury award of $8 million in punitive damages to a blind employee denied employment as a customer service representative. (award subsequently reduced to maximum allowable under the ADA)
- In EEOC v. E.I. DuPont De Nemours & Co., there was a jury award of $1 million to an employee who had a spine and disc disease (award subsequently reduced to maximum allowable under the ADA)
What The Law Requires
- Prohibits an employer from discriminating against employees based upon their disability.
- Requires an employer to engage in “the interactive process”.
- Requires an employer to provide a “reasonable accommodation” to a qualified individual with a disability when it is requested.
- Prohibits medical exams until after a conditional job offer
- Requires that all medical information and documentation be kept in separate medical files that only human resources can access
How We Can Help
- We can draft a Americans with Disabilities Act Accommodation Policy for you
- We can provide on-site or on-line training for your managers and employees on complying with the ADA
- We can train your managers on how to conduct an effective discrimination and/or harassment investigation
- We can provide advice on what is required to demonstrate that you have engaged in “the interactive proves”
- We can assist you in determining whether and what type of accommodation is required
Managers Beware: Tips To Prevent Liability Under The ADA
Bob has been out on FMLA for 12 weeks. 12 weeks I have had to keep his job open and now that he left me one employee short for 12 weeks he calls and tells me that he can’t come back to work yet. I told him enough is enough. If he does not come back tomorrow, I am going to fire him.
No problem right? WRONG! FMLA is only the first issue when an employee is out on leave. Managers also have to keep in mind the ADA. Because when an employee tells a manager that he/she might not be able to return from leave, such a statement could constitute a request for a “reasonable accommodation” under the ADA.
The ADA requires employers with 15 or more employees to provide disabled employees with a “reasonable accommodation” when an employee requests such an accommodation. Requesting an additional leave of absence even after 12-weeks of FMLA leave could be a request for a “reasonable accommodation” under the ADA even if the employee does not use the exact words “reasonable accommodation” and even if the employee does not mention the ADA at all.
Managers need to understand that once a disabled employee requests a reasonable accommodation by asking for an additional leave of absence, the employer’s obligation to engage in the “interactive process” is triggered and if the employer fails to engage in the interactive proves and/or worse terminates the employee, the employer subjects itself to claims that it has violated the ADA.
What does the interactive process require? It requires a back and forth between the employer and the employee to determine:
- Whether the employee is a “qualified individual with a disability” and
- If he/she is, then what accommodation based on medical information from the employee’s health care provider together with the job description, will enable the employee to be able to perform the “essential functions” of the job?
Keep in mind that the employer is not obligated to always give the employee the precise accommodation that the employee requested. Rather, the employer is required to provide an accommodation that will enable the employee to perform the essential functions of the job. Managers don’t really need to worry about determining what accommodation should be provided to the employee. This is usually the job of Human Resources and the in-house legal counsel. But managers do need to know that when the employee calls at the end of their FMLA leave saying they are still sick and need additional time out of work, the manager may not fire the employee. Moreover, the manager should consult with and advise human resources so that human resources and the in-house counsel can engage in the interactive process with the employee and provide a “reasonable accommodation” which might be additional time out on a leave of absence.
The manager should also be careful to adequately document all of this so that if the employee later claims violation of the ADA, the employer can defend its actions by demonstrating in a court of law that it engaged in the “interactive process” and that it provided the employee with a “reasonable accommodation” in accordance with the ADA.
Leave of absence issues can be tricky for employers. However, understanding the employer’s requirements under both the FMLA and the ADA will enable the employer to ensure compliance with these important leave laws and help avoid liability in any future litigation that may arise.