Michael Moore, Esq. Director McKenzie HR Solutions Printer Friendly Version

Special Alert: Increased Exposure To Disability Claims

Last month, we wrote about the changes to the Americans with Disabilities Act (ADA) that were making their way through Congress. As we predicted, those amendments to the ADA shot through the legislative process and were last week signed into law by President Bush.

These changes, which will be adopted by every state that has similar disability rights laws, constitute nothing less than overthrowing a decade of settled law that dramatically favored employers. The ADA and state laws modeled after it provide that if an employee has a disability the employer must provide reasonable accommodation to that employee and may not discriminate against that employee on basis of the disability. If the answer to the question, “Does the employee have a disability under the law?” is no, the employer has no duty to the employee at all, and thus cannot be held liable for adverse employment actions.

It was assumed by those who enacted the ADA that the question of disability would be determined without regard to assistive devices or medication. For example, if someone has a leg amputated, that person would clearly have a disability, thus triggering employer liability for failure to accommodate or for discrimination. The same would be true for someone subject to grand mal seizures from epilepsy.

However, in a series of decisions in the late 1990s, the United States Supreme Court rejected that interpretation, holding that disability would be determined after considering assistive devices or medication. Thus, if an amputee could walk reasonably well with prosthesis, he/she would not qualify as being disabled. If the epileptic’s seizures were well controlled with medication, that person likewise would not qualify under the law.

Congress has now, in the amendments, specifically repudiated the Supreme Court interpretation. Courts must determine disability as originally conceived by the Congress. Moreover, the law requires the courts to liberally apply the ADA in favor of employees— striking down hundreds of cases that have strictly construed it against employees.

What does this mean for employers? Let’s consider a typical office scenario. A chairside assistant, Mary, employed for a number of years by Dr. Smith is diagnosed with rheumatoid arthritis. She has been having difficulty sitting and working for periods during the work day at her position. The arthritis is controlled pretty well with medication but her doctor would state that without it, she would have substantial impairments in her ability to sit, stand, walk and work.

Under the settled law, Mary would not have a disability and if Dr. Smith decided to terminate her because she was increasingly unable to do the job, he would have no exposure. However, under the new amendments, she is a qualified person with a disability, and Dr. Smith’s obligations are much more complicated.

Consider that Mary may ask Dr. Smith to bring in a consultant to modify the equipment so that she can more easily do her job. This constitutes a request for accommodations and Dr. Smith rejects that request at his peril. If he does hire a consultant, and the consultant recommends changes that may cost several thousands of dollars, Dr. Smith must carefully consider whether that accommodation is reasonable or not. Mary may ask for a change in work schedule, or to have more time to perform her duties, or any of a host of possible requests. The law requires that the doctor engage in an “interactive process” designed to reveal the most reasonable accommodation—and it is Dr. Smith’s duty to show that accommodations asked for are unduly burdensome to his practice.

Once Mary is in that protected class of individuals with disabilities, Dr. Smith faces liability if he decides for any reason to terminate Mary. Assume that Mary has always been difficult with co-workers and somewhat rigid in making changes. If Dr. Smith decides on new office procedures and Mary’s attitude and obstruction become a real problem, how does he deal with it? Will a termination be viewed by a plaintiff’s lawyer as discrimination—the asserted reason of behavior issues cited as a mere pretext to get rid of a disabled employee? The scenarios are almost endless.

Dr. Smith could simply claim that he did not know Mary had a disability, that she never mentioned it and her doctor never sent a letter to him. Unfortunately, the cases do hold that an employee need not mention disability or the law when requesting an accommodation. Moreover, knowledge of an illness or simply seeing the employee having difficulty performing the job may be constructive knowledge of a disability. Fortunately, there are practical means of reducing the risk of claims to a manageable level.

First, a complete review of your office manual or human resources policies is in order. Your application/interview forms must contain the question, “Do you require an accommodation?” This will alert you immediately to an applicant claiming a disability.

Second, your practice should have written job descriptions for each position. The law does not require the employer to eliminate “essential job functions” as part of an accommodation. For example, it would not be reasonable for Mary to demand that she be allowed to handle only two or three patients each day. A written job description is assumed by the courts to be competent evidence of what each employee must do as essential functions. However, without a job description, it is Dr. Smith’s word against Mary’s as to what the essentials are. Dr. Smith does not want to be in that position.

As to separating an employee who has a disability, your best defense is to have in place legitimate policies for performance, and following—and documenting—your efforts. In this regard, the usual practice of issuing warnings and suspensions is counterproductive. We have developed performance correction policies that are non-punitive, reasonable and designed to place the responsibility for performance improvement in the control of the employee.

When you are faced with an employee who asks for some type of change to help her do her job better because of some medical issue, it is the time to call in someone who can assist in guiding you through the complexities of determining disability and the need for accommodation. We can help you navigate those hazards, and there are a number of organizations which will work with employers and employees on issues of accommodation.

The lesson here is to not delay reviewing your policies and forms. Be ready now for what clearly is going to become a huge area of employment litigation beginning in 2009.

Mike Moore is ranked among the best in employment law and named one of the top 10 lawyers in Ohio. As Director of McKenzie's HRSolutions, Mike is the creator of the Employment Policy and Handbook, geared to providing dentists who are unsophisticated in the legal arena with a step-by-step policy manual.

Click here to hear Mike present “7 Elements of an Effective Employment Policy.” Email Mike at mike@thedentistsnetwork.net.

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