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ADAAA Best Practices

Navigating the maze of responsibilities can be a daunting task for employers, particularly when it comes to The Americans with Disabilities Act Amendments Act (ADAAA).

In the first two years of the ADAAA, ADA-filed charges increased 30%.1

To minimize the risk of serious financial liability, employers should understand their obligations under the Americans with Disabilities Act (ADA). The following steps can serve as an employer’s best line of defense in complying with the law:

  1. Training supervisors
  2. Maintaining regular contact with employees
  3. Implementing comprehensive ADA procedures

Predictable Assessments Provide a Framework for Broader Coverage

The application of predictable assessments requires employers to always perform an individualized assessment.

However, certain impairments will, in most cases, result in a determination of disability and coverage under the ADA. In these instances, the process should be relatively simple and straightforward.

The EEOC lists certain conditions that, in virtually all cases, satisfy the definition of disability. Conditions that should lead to ”predictable assessments” include, but are not limited to:
  • Deafness
  • Epilepsy
  • Blindness
  • HIV
  • Intellectual Disabilties
  • Multiple Sclerosis
  • Missing Limbs (or use of)
  • Muscular Dystrophy
  • Depressive Disorder
  • Bi-polar Disorder
  • Autism
  • Post Traumatic Stress Disorder
  • Cancer
  • Obsessive Compulsive Disorder
  • Cereberal Palsy
  • Schizophrenia
  • Diabetes
  • Mobility Imparments Requiring Use of a Wheelchair

Why Perceptions of Disability Matter

Under the ADAAA regulations, an individual is regarded as having a substantially limiting impairment if the individual is subjected to a prohibited action because of an actual or perceived impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.

Example: An applicant with a prominent physical deformity is denied a cashier position based on the employer’s concerns about customer reactions. If the employer refuses to hire this person, despite his/her ability to perform the job, it has “regarded the individual as” disabled.

“The “regarded as” clause was designed to protect individuals from discriminatory actions based on myths, fear and stereotypes about disability.”
— Linda Batiste, Principal Consultant, Job Accommodation Network (JAN) March 14, 2013

In order to establish that an individual is “regarded as” having an impairment, it must be demonstrated that the employer engaged in a prohibited action and that the action was based on a perception of impairment, or an actual impairment.
Prohibited actions may include:

  • Refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, or harassment.
  • Denial of any other term, condition, or privilege of employment.
  • Taking steps to understand an employee’s actual or perceived impairment can help protect the employer against “regarded as” findings. For example:
    • Offering accommodations to an employee who appears to be having difficulty performing his/her job, and
    • Requesting medical information during the interactive process

Granting Leave as a Reasonable Accommodation

Employers may assume that once The Family and Medical Leave Act (FMLA) leave is exhausted, an employee is not eligible for additional leave and can be terminated if the individual is unable to return to work. However, under the ADA, employers can be obligated to provide unpaid leave as an accommodation. Disability-related conditions that could prompt a leave request include, but are not limited to:

  • Medical treatment
  • Recuperating from an illness
  • Repairs on a wheelchair or other device
  • Adverse work conditions that could impact an existing medical condition
  • Service animal training or training related to a disability (i.e., Braille or sign language)

If an employee requests time off for a reason that could be disability related, an employer should treat it as a request for reasonable accommodation and initiate the interactive process.

Example: An employee takes a 12-week leave under the Family and Medical Leave Act (FMLA), and requests additional time off. Using the interactive process, the employer must determine whether this request constitutes a reasonable accommodation under the ADA.

“Employers that do not consider additional time off as part of the accommodation process risk liability under the ADA.”
— John J. O’Connell, Assistant Vice President and Senior Counsel, The Hartford

Employers should avoid inflexible leave-of-absence policies that automatically terminate employment after a specified leave period. Each leave request must be evaluated on an individual basis. In most situations, an employee granted leave as a reasonable accommodation under the ADA is entitled to return to the same position.

Identifying a “Direct Threat”

An employer is not obligated to hire or employ an individual with disabilities if that person poses a “direct threat.” A direct threat is defined as a significant risk of substantial harm that cannot be eliminated or reduced through reasonable accommodation.

An employer must determine whether an employee is a direct threat using the best available objective medical evidence. Three factors should be considered:

  1. Severity of harm
  2. Likelihood of harm
  3. Imminence of harm

Example: An employee with a psychiatric or cognitive disability requests permission to use a portable music player while operating a forklift. Applying the “direct threat” standard to this case, the employer must determine whether the proposed accommodation raises a safety risk to co-workers or the public.

Because an employer bears the burden of proving a “direct threat,” all actions and decisions must be carefully documented.

Employer Obligations Related to Illegal Drugs and Alcohol

An employee or applicant using illegal drugs does not meet the qualifications for disability and, therefore, does not receive protection under the ADA.

Under the ADA, employers may:

  • Prohibit the use of illegal drugs and alcohol in the workplace.
  • Require that employees not be under the influence of illegal drugs and alcohol at work.
  • Require employees conform to the Drug-Free Workplace Act of 1998.
  • Hold an employee who uses illegal drugs/alcohol to the same standards for job performance and behavior as other employees, even if the unsatisfactory behavior is related to drug/alcoholism.

Example: An employer refuses to hire an applicant based on a positive drug test. Any person currently using illegal drugs is removed from the ADA’s definition of “disability” and not eligible for protection.

Alcohol is not defined as a “drug” under the ADA. Therefore, individuals with an existing or prior alcohol problem are protected against discrimination, provided they can effectively perform the essential functions of the job.

Maintaining effective communication can help employees address performance problems related to drug or alcohol use and explore alternative accommodation options. For instance, recovering addicts and alcoholics may qualify for time off for outpatient treatment or counseling.

For more information and practical tips on navigating the reasonable accommodation process, please refer to The Hartford’s paper entitled “Demystifying the ADAAA reasonable accommodation process”.

1http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm, viewed 4/8/13.

The Hartford does not provide legal advice related to ADA compliance. The information contained herein is not to be construed as legal advice and is informational only. For legal advice, please contact the counsel of your choice.

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