Today I want to share some short but pithy guidance on the ADA. I had the privilege of attending the annual ADA and FMLA Compliance Conference presented by the National Employment Law Institute (NELI), and yesterday was ADA day. Here are some key points made by the presenters:

Voluntariness of or cause of the employee’s impairment does not matter! The speakers reminded us of the long-standing rule that voluntary aspects of how an employee’s impairment arose, whether the employee is getting appropriate treatment, whether the employee engages in activities that exacerbate his condition, etc., are irrelevant to an employer’s ADA duties. (EEOC Compliance Manual §902.2(e)) Examples:

An employee whose job requires lifting, but injured her back working out at the gym;
Employee with asthma that is exacerbated and affects her work after she goes for morning bike rides.

There are still standards to be met, even under the ADAAA. The ADAAA did not eliminate requirements that the employee have an impairment that substantially limits a major life activity. The standards may be lower now, but they still must be met.

“Regarded-as” liability. Did you know that you violate the ADA if you take action against an employee because you think the employee is disabled and you act on that belief? Regarded-as ADA liability has two parts: (1) the employer takes a negative employment action against an employee (2) because the employer believes the employee has an impairment that is NOT both minor and transitory. In other words, the condition the employer believes the employee has must be one that would actually constitute a disability if it in fact existed.

Essential functions – put it in the job description! Although the employer’s opinion of a job’s essential functions carries some weight, it is most helpful if the essential functions are defined in the job description. Conversely, the absence of a function as essential in the job description can be used against the employer. Examples:

Agee v. Mercedes-Benz (11^th 2016)

Auto assembly team worker unable to work mandatory overtime
Job description specified OT was an essential function
Summary judgment for employer granted – no jury trial

Stephenson v. Pfizer (4^th 2016)

Pharmaceutical sales rep was unable to drive to doctors’ offices
Was driving the essential function? Or was it performing sales at doctors’ offices, regardless of how employee gets there?
Driving was not identified as essential function in job description
Summary judgment for employer denied – on to jury trial!

Conflicting medical opinions. Suppose an employee presents a doctor’s note with restrictions and the employer cannot accommodate. Then, the employee presents a note from a different doctor that she has no restrictions, or the employee states that really, she can perform the job without restrictions. The employer has right to make decisions based on the opinion from the employee’s usual treating physician. “It is not reasonable to expect an employer to disregard an employee’s treating physician’s opinion expressly imposing physical restrictions.” (Scruggs v. Pulaski County, AR (8^th Cir. 2015)). The EEOC might expect the employer to get more information or do a deeper analysis, but generally an employee cannot disavow his/her own statements or provider’s opinion.

Undue hardship – a place you don’t want to be. If there is a reasonable and effective accommodation for a disabled employee, then the employer’s only reason not to provide the accommodation is that it constitutes an undue hardship. Most employers think in terms of the cost to provide the accommodation but this is a poor argument in most cases. Example: A court suggested that a $129,000 workplace modification to allow a blind employee to work in a call center might not be an undue hardship. Reyazuddin v. Montgomery County (4^th Cir. 2015). Moreover, arguing financial hardship will often require the employer to open its financial records to scrutiny by opposing counsel. Better hardship arguments are based on negative effects on the workload of other employees, operational disruptions, missed deadlines, and the like.

Many thanks to the excellent presenters David Fram (NELI), Paul Buchanan (Buchanan Angeli Altschul & Sullivan LLP), and Diane Smason (EEOC Trial Attorney, Chicago District Office).

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