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Legal Updates

Recent ADA Cases Underscore Heightened Accommodation Duties

Under the 2008 amendments to the Americans with Disabilities Act (“ADA”), employers’ obligations to accommodate employees with disabilities were significantly expanded.  This is now being reflected in court decisions, which are increasingly favoring employees whose requested accommodations were denied.  As this trend has emerged, many employers have settled ADA claims originally believed to be defensible in order to avoid potential adverse judgments.

In light of this development, it is crucial that employers carefully review their policies and procedures regarding disability accommodations to ensure that they are in compliance with the amended ADA.  And employers embroiled in disability discrimination cases in court should make the utmost of any and all accommodations offered to the plaintiff.

Background

The recent amendments to the ADA broadly expand the universe of physical and mental conditions that qualify as protected “disabilities.”  In particular:

  • The employee’s burden of proof in establishing that a physical or mental limitation “substantially limits” a major life activity has been significantly lessened, as this standard may now be met via a generalized, non-scientific comparison to most people in the general population;
  • The definition of “major life activity” has been expanded to encompass “major bodily functions” (such as the immune, digestive, circulatory and reproductive systems);
  • The determination of whether an impairment substantially limits a major life activity must now be made without regard to the potential use of outside measures, e.g., medications or physical-assistance devices, that might mitigate the limitation (although the mitigating effects of ordinary eyeglasses and contact lenses may be considered);
  • A condition that substantially limits a major life activity when active qualifies as a covered disability even if the condition is episodic, in remission or otherwise not active; and
  • An employer may be held liable for taking adverse action based on its “regarding” an employee as having a physical or mental impairment, even if the employer does not perceive the putative impairment as substantially limiting a major life activity.

Recent Cases

Recent cases under the ADA illustrate the statute’s broadened definition of a covered “disability.”  For instance, a federal court in Illinois recently held that an employee’s HIV-positive status, by itself, was sufficient to trigger the protections of the ADA, even though the employee’s performance of his job duties had not been affected by his condition.  Likewise, a federal court in New York recently held that an employee’s breast cancer could qualify as a disability under the ADA, even though the cancer was in remission.

Further, in keeping with the amended ADA’s overall purpose of expanding protections for disabled employees, recent lawsuits by employees and the Equal Employment Opportunity Commission (“EEOC”) have forced employers to be much more flexible in providing extended leaves of absence as an accommodation for employees with disabilities.  For example, during 2011 alone, there were numerous substantial settlements with the EEOC on this issue.

Verizon Communications agreed to pay $20 million to settle a lawsuit alleging that its nationwide attendance policy unlawfully failed to provide flexibility for employees with disabilities requiring extended leaves of absence.

Denny’s, Inc. agreed to pay $1.3 million to settle claims that its medical leave policy unlawfully provided for an absolute maximum of 26 weeks’ leave, regardless of whether additional leave might constitute a reasonable accommodation under the ADA.

The Jewel-Osco chain of stores agreed to pay $3.2 million to settle a lawsuit brought by the EEOC, which alleged that Jewel-Osco had an unlawful policy of automatically terminating any employee who failed to return at the end of a medical leave without regard to whether the employee might reasonably be given extended leave as an accommodation for a disability.

A Michigan employer settled (for an undisclosed amount) an ADA claim by an employee with cancer, where the employer rejected the employee’s request to work part-time for an additional five months while undergoing chemotherapy.

Recommendations For Employers

In light of the expanded employee protections demonstrated in these recent cases under the amended ADA, employers should:

  • Provide appropriate training to ensure that managers and HR personnel (i) recognize that a broader range of conditions may now qualify as disabilities under the ADA, and (ii) understand how to respond when an employee requests an accommodation for a disability;
  • Revise their attendance and leave policies as necessary to allow for flexibility for employees with disabilities;
  • Update their job descriptions to accurately reflect each position’s qualifications and essential functions, so that there will be no ambiguity as to a job’s requirements when an employee requests an accommodation; and
  • Consider adopting an accommodation policy that sets forth (i) the steps that an employee should take to request an accommodation, and (ii) the process through which the employer will respond to such requests.  The policy should make clear that medical documentation will be required and that decisions regarding accommodations will be made on a case-by-case basis.

By having clear policies in place and ensuring that managers and HR personnel understand how to identify and handle requests for accommodations, an employer can help to ensure its compliance with the amended ADA.

Finally, it is critical that an employer litigating a disability discrimination claim provide counsel with full and complete information about all accommodations that were offered to the plaintiff.  Often, a variety of accommodations are offered to an employee in the course of both informal discussions and formal meetings, such as extended leaves of absence, flexible work hours, extended deadlines for completing assignments, or reassignment of some of the employee’s job duties to other employees.  By identifying, in as much detail as possible, the various accommodations that were offered, an employer can enhance its chances of defeating an employee’s lawsuit alleging a failure to accommodate his or her disability.  (Of course, employers should thoroughly document all such proposed accommodations at the time they are offered.)

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If you have questions about these recent developments or would like guidance in achieving ADA compliance, please do not hesitate to contact us.  We have created a training program specifically designed for HR professionals and managers who are responsible for receiving and responding to requests for accommodations, and we would be happy to tailor this training program to your particular needs.