July 18, 2018

A. Coverage of Employers under the ADA.

An employer is covered under the ADA if it employs 15 or more employees for 20 work weeks in the current or preceding calendar year.

B. Eligibility Issues of Employees under the ADA.

1. Definitions of Disability.

The employee is disabled if he or she meets any one of the following three elements of the definition of disability under the ADA:

a. physical or mental impairment that substantially limits one or more major life activities of such individual; or

b. a record of such an impairment; or

c. is regarded as having such an impairment. 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). The ADA Amendments Act of 2008 further defined the "regarded as" element of the definition of disability. An individual is "regarded as" having an impairment if the individual has been subjected to discriminatory action because of an actual or perceived physical or mental impairment, regardless of whether the impairment limits or is perceived to limit a major life activity. 42 U.S.C. § 12102.

The ADA Amendments Act of 2008 also provides that the definition of disability should be broadly construed to provide for maximum coverage of the ADA. This was added in order to reverse a trend in judicial opinions that had been narrowing the coverage of the ADA.

2. The ADA’s Definition of “Physical or Mental Impairment”:

a. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one [of several body systems]; or

b. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. § 1630.2(h).

3. Exclusions.

The ADA excludes certain conditions such as certain sexual and behavioral disorders. Employers should determine whether any of those exceptions apply. The ADA also excludes protection for the current or recent use of illegal drugs.

4. The ADA’s Definition of “Substantially Limits.”

An impairment substantially limits a major life activity if it prevents or significantly restricts the duration, manner or condition under which an individual can perform a particular major life activity as compared to the average person in the general population’s ability to perform that same major life activity. 29 C.F.R. § 1630.2(j). An impairment that is episodic or is in remission but that could substantially limit a major life activity when active is considered a disability covered by the ADA. Pursuant to the ADA Amendments Act of 2008, the determination of whether a disability substantially limits a major life activity must be made without considering mitigating measures or assistive technology such as medication, medical supplies, prosthetics, hearing aids, mobility devices, or low-vision devices other than the ordinary glasses or contacts.

5. The ADA’s Definition of “Major Life Activities.”

a. Major life activities are those basic activities that the average person in the general population can perform with little or no difficulty. Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, eating, sleeping, speaking, breathing, learning, working, sitting, standing, lifting, bending, reaching, thinking, reading, concentrating, and interacting with others. 29 C.F.R. § 1630.2(i).

b. The ADA Amendments Act of 2008 clarified that major life activity includes the operation of major bodily functions, including functions of the immune system. Normal cell growth, digestive bowel, bladder, neurological, brain, respiratory, circulatory,  endocrine, and reproductive functions. 42 U.S.C. § 12102.

c. According to the EEOC, employers should first consider whether a person is substantially limited in any major life activity besides working. If a person is impaired in any major life activity other than working, the person meets this aspect of the definition and there is no need to consider whether the person is substantially impaired in his or her ability to work.

d. If a person is not impaired in any major life activity other than working, employers should consider whether the person is substantially restricted in his or her ability to work.

e. Whether a person is substantially restricted in the major life activity of working involves whether the person’s impairment prevents the person from performing job duties in a broad range of jobs. 29 C.F.R. § 1630.2(j)(3) and Appendix. The following factors are relevant:

(1) the geographical area to which the individual has reasonable access;

(2) the job from which the individual has been disqualified because of his or her impairment and the number and types of jobs within that geographical area that utilize similar training, knowledge and abilities from which the individual is also disqualified; and/or

(3) the number and types of other jobs not utilizing similar training, knowledge or abilities within the geographical area from which the individual is also disqualified due to the impairment.

(4) Under the above factors, an individual is not substantially limited in working if he or she is unable to perform a particular job for a particular employer or is unable to pursue a very specialized occupation.

6. Definition of a “Qualified Person with a Disability.”

If the employee’s condition meets the definition of “disability,” then the employer must determine whether the employee meets the standards under the ADA for being a “qualified individual with a disability.” If the employee is not a qualified person with a disability, then the employer is not protected under the ADA.

a. The ADA defines a “qualified person with a disability” as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. 42 U.S.C. § 12111(8).
b. The determination of whether an individual with a disability is “qualified” should be made at the time of the employment decision based on the capabilities of the disabled individual at that time. It should not be based on speculation that the employee may become disabled in the future or may cause increased health insurance premiums or workers’ compensation costs. 29 C.F.R. § 1630.2(m) Appendix.
c. The determination should be made in two steps.
(1) Determine if the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.
(2) Determine whether the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation.
d. The “essential functions” of a job are explained in the EEOC Regulations [§ 1630.2(n)(2)] as follows: A job function may be considered essential for any of several reasons, including but not limited to the following:
(1) The function may be essential because the reason the position exists is to perform that function;
(2) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(3) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
e. The concept of the “essential functions” of a job focuses on the important end results to be accomplished by the employee, not on the methods or manner in which the job results are accomplished.

(1) The EEOC Regulations [§ 1630.2(n)(3)] list the following as examples of evidence that will be considered in determining the essential functions of a job:
(a) The employer’s judgment as to which functions are essential;
(b) Written job descriptions prepared before advertising or interviewing applicants for the job;
(c) The amount of time spent on the job performing the function;
(d) The consequences of not requiring the incumbent to perform the function;
(e) The terms of a collective bargaining agreement;
(f) The work experience of past incumbents in the job; and/or
(g) The current work experience of incumbents in similar jobs.

7. Duty to Accommodate.

If the employee is a qualified person with a disability, then, and only then, does the employer have an obligation to attempt to provide a reasonable accommodation to the employee under the ADA.

a. Accommodation Process.

The ADA embodies the concept that the employer and employee will engage in a cooperative process of communication and consultation to determine if a reasonable accommodation can be made that will enable the employee to remain in his or her position.

This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. § 1630.2(0)(2).

b. Examples of Reasonable Accommodations.
“Reasonable accommodation” may include: job restructuring, part-time or modifiedwork schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities. 42 U.S.C. § 12111(9).

c. Undue Hardship.

An employer is not required to provide a requested or available accommodation if it would pose an undue hardship on the business. 42 U.S.C. § 12112(b)(5)(A). In determining whether an accommodation would pose an undue hardship, the employer must consider several factors, including, but not limited to, the following, set out in the regulations at 29 C.F.R. § 1630.2(P(2). (1) The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding;

(2) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;

(3) The overall financial resources of the [employer], the overall size of the business of the [employer] with respect to the number of its employees, and the number, type and location of its facilities;

(4) The type of operation or operations of the [employer], including the composition, structure and functions of the workforce of such [employer], and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the [employer]; and

(5) The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility’s ability to conduct business.If a particular accommodation would impose an undue hardship for an employer, the employer may be required to pay for that portion of the accommodation that would not be an undue hardship so that the accommodation can be achieved if the employee or a public or private agency is able to pay for the remaining costs of the accommodation after the employer has paid its reasonable share.

d. Accommodations for Known Disabilities Only.

Employers are required to make reasonable accommodations only for the known disabilities of applicants or employees. Employers are not required to probe whether an employee’s unsatisfactory job performance or misconduct is the result of an undisclosed disability such as a psychological condition. Herberiz v. Indians Bell Tel. Co., 4 A.D. Cases (BNA), 65, (7th Cir. 1995)

e. Regular Attendance as a Job Qualification.

Several courts have held that regular or predictable attendance was an essential function of a plaintiff’s job, e.g., Carr v. Reno, 3 A.D. Cases (BNA) 434, 436-38 (D.C. Cir. 1994); Jackson v. Veterans’ Administration, 3 A.D. Cases (BNA) 483, 484 (11th Cir. 1994); Walders v. Garrett, 765 F. Supp. 303, 309 (E.D. Va. 1991); Wimbley v. Bolger, 642 F. Supp. 481, 485 (W.D. Tenn. 1986); Matzo v. Postmaster General, 685 F. Supp. 260 (D.D.C. 1980).

Under those court decisions, an employee who requests a leave because he or she is not able to attend work regularly is not a “qualified person with a disability,” is not protected by the ADA, and is entitled to any accommodation.

Carefully drafted attendance policies that are uniformity enforced are the best protection against leave abuse. For example, in Ramsey v. White Consolidated Industries, Inc., 98 U.S. App. LEXIS 16401 (4th Cir. July 17, 1998), the employer had a “no-fault” attendance policy, that was based on a ten-point system. Employees would have points subtracted if they were absent or tardy, and would be terminated when their point total reached zero. No points were deducted for a medical leave and half-points were added for every 30-day period with perfect attendance. For employees with chronic medical conditions, the employer had an “occurrence program,” that was a modified, less-stringent version of its attendance policy where five absences were allowed before a point would be deducted. Plaintiff, who was confined to a wheelchair and often had medical problems as a result, was accommodated by being placed on the occurrence program. Nevertheless, plaintiff was terminated after being either absent, on leave, tardy or leaving early for a total of ninety-two days in an eleven-month period. The court held that plaintiff was not a qualified individual with a disability under the ADA because “an employee who cannot meet the attendance requirements of the job at issue cannot be considered a qualified individual protected by the ADA.

In Corder v. Lucent Technologies Inc., 1997 WL 534513 (N.D. Ill. Aug. 25, 1997), plaintiff missed approximately 49% of her scheduled work days during a nine month period as a result of depression. Her psychologist wrote a letter to the employer stating that the plaintiff needed the following accommodations: (1) to take brief, frequent breaks; (2) to leave early on Friday afternoons to meet with her doctor; (3) to take an unpredictable amount of time off from work when her disability prevented her from working; and (4) to arrive at work later and leave early when her symptoms became severe. The employer eventually terminated plaintiff’s employment after repeated absences and the plaintiff’s refusal to undergo a fitness-for-duty psychological examination. The court held that the plaintiff could not prove that she was a “qualified individual” under the ADA because she was incapable of performing the essential functions of her position. Specifically, because reasonable and predictable attendance was an essential function of her job, her excessive absenteeism rendered her unqualified.

In Sunkett v. Olsten Temporary Services, 116 F.3d 1486 (9th Cir. 1997), the plaintiff was dismissed after he left his temporary work assignment without permission. Plaintiff claimed that he had to abandon the position because of his epilepsy and that his termination violated the ADA. The court upheld the termination and stated that although the plaintiff’s behavior may have been precipitated by an epileptic seizure, an employer may nevertheless dismiss an employee for on-the-job misconduct that is caused by a disability provided that the employer does not actually terminate the employee because of the disability.

f. Leave Requests as an Accommodation.

The EEOC’s Technical Assistance Manual regarding the ADA states [at Section 7.10] that employers may follow regular leave policies when dealing with disabled employees: An employer may establish attendance and late policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave.

Nevertheless, the same EEOC Manual states that employers may be required to provide adjustments to its leave practices as an accommodation:

An employer may be required to make adjustments in leave policy as a reasonable accommodation. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.

Some courts have held that reasonable accommodation includes granting of leaves of absences or tolerance of absenteeism. See e.g., Kimbro v. Atlantic Richfield Co., 3 A.D. Cases (BNA) 1537 (9th Cir. 1994) (upholding finding that employer could reasonably accommodate employee’s migraine condition by granting him leave of absence where no evidence suggested such leave would have caused employer undue hardship). However, leave is not generally a reasonable accommodations where other accommodations have been attempted and prove fruitless. In Teague v. Las Vegas Sands, Inc., 111 F.3d 138 (9th Cir. 1997), the plaintiff requested an extension, possibly indefinite, of a seven-month long disability related absence. The plaintiff claimed that a further extension of his already extended leave was a required reasonable accommodation that would eventually enable him to perform the essential functions of his position. The employer disagreed and terminated the plaintiff, who promptly sued alleging an ADA violation. The court agreed with the employer and held that an employer is not required to grant an employee additional accommodations (including additional leave) when prior accommodations have proven unsuccessful.

g. Making Positions Part-time.

Making positions part-time or providing additional unpaid leave are among the accommodations contemplated by the Act, but at least one court has concluded that such accommodation is not necessary. See Chiari v. City of League City, 920 F.2d 311, 318 (5^th Cir. 1991) (city need not create a part-time position for employee).

h. Modified Work Schedules.

Under the ADA, an employer may have to modify an employee’s work schedule if this is determined to be a reasonable accommodation. In addition to making a position parttime, a modified work schedule can also include altering arrival and departure times, providing periodic breaks during the day or changing the time when an employee is required to perform essential tasks. Modified work schedules, however, will be required only where the modified schedule is necessary because of the employee’s disability. In Gaines v. Runyon, 107 F.3d 1171 (6th Cir. 1997), a plaintiff requested a particular straight shift schedule because of his epilepsy. The court examined his medical records and noted that he only needed a straight shift schedule in order to maintain a consistent sleep pattern. Since he was already working straight shifts, a schedule change was not required.

i. Allowing Employees to Work at Home.

Some courts have concluded that it might be reasonable to require an employer to accommodate disabled employees by allowing them to work at home. Langon v. Health & Human Servs., 3 A.D. Cases (BNA) 152 (D.C. Cir. 1994) (an issue of fact exists whether it would have been a reasonable accommodation to allow computer analyst with multiple sclerosis to work at home); Sargent v. Litton Systems, 3 A.D. Cases (BNA) 710, 713-14 (N.D. Ca. 1994) (“With faxes and car phones and home offices, it is no longer the case that an employee must always be physically on site in order to perform her job . . . the [California Fair Employment and Housing Act] does not categorically put such major restructuring outside an employer’s duties.”); cf. Misek-Falkoff v. IBM, 3 A.D. Cases (BNA) 449, 458 (S.D.N.Y. 1994) (employee whose disability prevented her from being able to cooperate and get along with co-workers and supervisors could not be insulated from personal contact by being allowed to work at home; such accommodation would not be reasonable, or successful, in that case).

j. Employee Care-Providers Are Not Entitled to Accommodations.

There is no duty to make accommodations for individuals who are not themselves disabled, but who live with, or care for, a disabled person. Although it is unlawful to discriminate against such a care-providers (because the employer might assume that they will be excessively tardy or absent), it is lawful to discharge such people pursuant to standard attendance policies without having to accommodate them through extra leave or job restructuring measures. See, e.g., Tyndall v. National Educ. Centers, 31 F. 3d 209 (4th Cir. 1994) (ADA does not require employer to restructure an employee’s work schedule so the employee can care for a relative with a disability). Although an employer does not have a duty to accommodate employees who care for one individual with a disability, the ADA prohibits discrimination against an employee because of association with a person with a disability. Employers should therefore take care that they do not take action against the caretaker based on stereotypes or assumptions about their caretaker responsibilities. For example, an employer cannot refuse to hire a job applicant whose child has a disability based on the belief that the child will require extra care and the parent will be absent frequently.

k. An Employer Does Not Have A Duty To Provide A Particular Accommodation.

There is no duty to provide a particular accommodation; an employer need only provide a reasonable one. Fink v. New York City Dep’t of Personnel, 3 A.D. Cases (BNA) 1067 (S.D.N.Y. 1994) (rejecting blind plaintiffs’ argument that employer should have provided Braille promotion tests because readers, who employer chose to provide instead, sometimes read questions wrong or distracted test-takers with unrelated talking).