The government has given the first detailed indication of how it plans to enforce the recently toughened federal law on disability discrimination. And for HR pros who want to keep their organizations out of legal hot water, the government action is worth a close look.
Here’s what happened: The EEOC, the federal employment law watchdog, announced three lawsuits under the Americans With Disabilities Act Amendments Act (ADAAA). The EEOC described the cases as “among the first” it’s filed under the ADAAA, which became law in January 2009.
What ‘substantial’ means
A reminder: The big change from the original ADA to the ADAAA was the latter’s broadening of what a disability is.
The law defines a disability as a condition that “substantially limits” a major life activity, and the ADAAA instructs the courts to err on the side of liberality in deciding whether a given person has a substantial limitation. (The new law also lengthened the list of activities that count as major.)
Employment lawyers say that now, because so many employees may be able to qualify as disabled, employers should focus not on quibbling over whether a given person is disabled or not, but rather on how they can accommodate the person. In fact, these lawyers have a tongue-in-cheek definition for ADAAA: “Assume Disability; Always Attempt Accommodation.” Which brings us to the three new EEOC suits, two of which concern accommodation.
The tale of a stool
In the first, a new district manager for a pharmacy chain decided he didn’t like having a cashier sitting on a stool, despite the fact that she had arthritic knees and had been granted the stool as an accommodation in the past. The employee eventually lost her job.
Bad call. Under the old law, the company might have been able to show that the employee wasn’t disabled, by arguing that her arthritis didn’t stop her from carrying out her main life activities. But now, that argument is out the window. And the company’s failure to accommodate has gotten it sued.
Takeaway for HR: Remember the three Re-’s of disability accommodation:
- Retool (give the person new job tools).
- Revamp (change the structure of the job).
- Reschedule (adjust the person’s work schedule).
Any or all of these may allow the person to do his or her job acceptably. For the pharmacy cashier, the stool was the tool, and shouldn’t have been taken away.
Too much leave?
In the second case, an employee took medical leave to undergo chemotherapy. A few months later, the employee asked if he could work part-time while he completed the treatment. Instead, the EEOC claims, the employer fired him for exceeding his maximum leave allotment. That got the company sued.
Takeaway for HR: This case gives an example of the third Re- of accommodation: Reschedule. Allowing employees with disabilities to work part-time may be one possible accommodation. Others would be shift changes or arrangements to work from home or another off-site location.
Diabetes and work
The third ADAAA lawsuit is slightly different. It involved two surveyors who were chosen to be part of a reduction in force because, the EEOC says, the employer gave employees a health questionnaire and learned the two had diabetes and hypertension. The EEOC claims they had been successfully doing their jobs for many years despite their condition.
Takeaway for HR: While there may be certain jobs that would be dangerous for people with uncontrolled diabetes – because of a risk of losing consciousness – diabetics can do most jobs successfully. Again, look for an accommodation where necessary.
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