Reasonably Accommodating ADA Disabilities: What is Old Is New Again!

June 4, 2013

By: James Holahan

Reposted with permission from the Rochester Daily Record, June 4, 2013

Successful human resource professionals embrace change. They anticipate it, recognize it, react to it, and implement it. They are change agents – tasked with changing performance, correcting behavior, and improving productivity. At times, however, they can be overwhelmed by change and understandably resistant to it.

As such, it is a rare and welcome circumstance to find any landmark on the labor relations and employment landscape which has not changed in more than a decade. Since its passage in 1990, the Americans with Disabilities Act (“ADA”) has defined “disability” as: (a) a physical or mental impairment that substantially limits one or more major life activities of an individual, (b) a record of such an impairment; or (c) being regarded as having such an impairment. Human resource professionals have been grappling with, using, and reciting this core definition since the ADA’s inception more than 20 years ago. I submit to you, however, that we have never seen anything so unchanged, change so much, as the scope of the disabilities protected by the Americans with Disabilities Act.

In the years that followed the ADA’s passage, the United States Supreme Court interpreted the definition of “disability” in an increasingly restrictive manner. In a series of decisions, the Court essentially neutralized the mission of this landmark legislation to promote fairness and opportunity in employment for qualified persons with disabilities. (See, e.g., Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 197, 122 S. Ct. 681 (US 2002)). In 2008, Congress dramatically reversed the course that the United States Supreme Court had charted for the ADA by passing the Americans with Disabilities Amendment Act (ADAAA). Without changing the basic definition of “disability”, the ADAAA and the implementing regulations promulgated by the Equal Employment Opportunity Commission (EEOC) in 2011, rejected the narrow interpretation that the Supreme Court had given the most important term in the legislation – “disability.” Although a person claiming to be disabled is still required to individually demonstrate that he or she satisfies one or more prongs of the definition of “disability,” the ADAAA and its implementing regulations now make that task much easier to accomplish.

For example, the ADAAA regulations contain rules of construction for determining whether an individual is substantially limited in performing a major life activity and, therefore, “disabled” under the Act. These rules of construction range from the very general (the term substantially limits should be construed broadly in favor of expansive coverage and requires a lower degree of functional limitation than previously required by the courts), to the more specific (an impairment in remission is a disability if it would substantially limit a major life activity when active). Applying these rules of construction, the ADAAA regulations also list impairments, such as epilepsy, diabetes, cancer and bipolar disorder, to name a few, that will virtually always constitute disabilities. As expected, a recent study of employment discrimination litigation in the federal courts covering Upstate New York conducted by Bond, Schoeneck and King, PLLC confirms that there has been an increase in the percentage of employment disability claims filed since the passage of the ADAAA. See Christine Simmons, Despite a Weak Economy, Job Bias Claims Dip Upstate, New York Law Journal, April 3, 2013.

Last month, the EEOC released Questions and Answers about the ADAAA’s application to four presumptively protected impairments: cancer, diabetes, epilepsy and intellectual disabilities. According to EEOC Chairperson Jacqueline Berrien, “nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability." These new materials guide employers about how to treat and interact with employees and job applicants who have one of these disabilities and specifically address what accommodations might be reasonable for these impairments.

Examples of “reasonable accommodations” for employees with cancer include leave for doctor’s appointments and treatment or permission to work at home. For employees with epilepsy, potential reasonable accommodations include a rubber mat or carpet to cushion a fall, a consistent start time or schedule, and permission to bring a service animal to work. For diabetics, increased breaks for food and drink and use of a stool or chair if diagnosed with diabetic neuropathy are posited as potential accommodations. Lastly, an array of accommodations for employees with intellectual disabilities are described, including: supplying interpreters or a job coach, providing detailed training and instructions, providing tape recorders or other equipment to aid in understanding and recalling tasks assigned, and modification of tests or other procedures. The EEOC guidance makes it clear that the listed examples are not meant to be blindly applied, and that employers must engage with each disabled employee or applicant to make an individual assessment about what measures would suffice as a reasonable accommodation for their particular impairment.

In an effort to further develop the law on what accommodations are “reasonable,” the EEOC has been pressing for more accommodating leave and attendance policies. Last year, the EEOC settled a number of ADAAA claims involving exceptions to long-standing employer policies. Some of the policies and practices that have been considered problematic by the EEOC include:

  • requiring employees to return from medical leave with no restrictions unless their conditions were related to on-the-job injuries;
  • requiring employees on leave to re-apply for vacant jobs upon returning from leave; and
  • counting disability-related absences as absences under a no-fault attendance policy.

The EEOC’s focus on leave and attendance policies should serve as a reminder to employers that the ADA may require leave as a “reasonable accommodation” even after an employee has exhausted leave available under the Family and Medical Leave Act (FMLA) or permitted by corporate policy or union contract.

Considering the EEOC’s broad view of what accommodations are “reasonable,” it is important to remember that an employer’s duty to reasonably accommodate a disabled employee does not excuse the employee from performing the essential functions of their job. On the contrary, a proposed accommodation, to be reasonable, must enable the disabled employee to perform the essential functions and duties of his or her position. 29 CFR 1630.2(o)(describing “reasonable” accommodations as those that “enable a qualified individual with a disability to perform the essential functions of that position”). This fundamental, but sometimes overlooked, concept was recently reaffirmed by a federal court in Texas. In Fuentes v. Krypton, (Fuentes v. Krypton Solutions, LLC, 2013 U.S. Dist. LEXIS 48739, 14, 27 Am. Disabilities Cas. (BNA) 1391, 2013 WL 1391113 (E.D. Tex. 2013)), the plaintiff employee was terminated when he failed to return to work after a protracted medical leave caused by a diagnosis of diabetes, even though he had been medically cleared to do so. In rejecting plaintiff’s ADA claim, the court held that “indefinite leave is not a reasonable accommodation” and that “attendance [can be] an essential function of [a] position.” Fuentes is not the first decision to find regular attendance at work to be an essential function. Several cases decided in the Second Circuit have held that "some degree of regular, predictable attendance is fundamental to most jobs," Misek-Falkoff v. IBM Corp., 854 F. Supp. 215, 227 (S.D.N.Y. 1994), aff'd, 60 F.3d 811 (2d Cir.), and that an employee who cannot get to work does not satisfy the essential requirements of her employment. Kotlowski v. Eastman Kodak Co., 922 F. Supp. 790, 796 (W.D.N.Y. 1996). Decisions like Fuentes recognize the legitimate rights and interests of employers and provide balance to the “reasonable” accommodation analysis.

By James Holahan, Bond Schoeneck and King PLLC with assistance from Abigail Norris, Student at the College of William and Mary School of Law