- Who Qualifies for Protection under the ADA
- Reasonable Accommodation Requirements
- Medical Questionnaires and Fitness for Duty
- False Representations During the Hiring Process (ADA & Workers’ Compensation)
Who Qualifies for Protection under the ADA
The ADA was signed into law in 1990 with the basic goal to make opportunities in the workplace more accessible to people with disabilities. The ADA Amendments Act (ADAAA) was adopted in 2008 to broaden the definition of “disability” and thereby expand the “zone of protection” that had been limited over the years by several US Supreme Court decisions.
The ADA prohibits discrimination on the basis of disability in private employment (those employing 15 or more employees) and State and local government or other public employers (regardless of size in most cases). Likewise, the ADA also protects co-workers and other individuals who may experience retaliation in response to advocating for the rights of someone who is protected under the ADA.
Basic Rules – To be protected by the ADA, one must have a disability or have a relationship or association with an individual with a disability. An individual must have a “disability.” Does that seem simple enough? It’s not. In legalese, the ADA protects individuals who:
- Have a physical or mental impairment;
- That substantially limits one or more major life activities.
The ADA also protects:
- Individuals who have a history or record of such an impairment; and
- Individuals perceived by others (or regarded by others) as having such an impairment.
Defining Impairment – The ADA does not specifically name all of the impairments that qualify as disabilities. The ADAA regulations did provide the following, broad definition of “impairment” to include:
- Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or
- Any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
“Impairments” typically though do not include certain physical characteristics or conditions that are within “normal” ranges – weight, eye and hair color, pregnancy or being left-handed, as long as the condition is not the result of a physiologic disorder. Also common personality traits are usually not “impairments”, including things like poor decision making capability or a short temper, as long as the traits are not the result of an underlying mental health condition that would independently qualify as an impairment itself.
“Major Life Activities” – Remember, the impairment must “substantially limit” a “major life activity. Major life activities broadly include (but are not limited to):
- Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; an
- The operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.
This expansive definition adopted in 2008 made it clear that when medical conditions (such as cancer, heart disease, diabetes, sleep disorders, etc.) affect “bodily functions” they qualify as impairments. This is likely true even when there is no outward appearance of impairment. So, an insulin dependent diabetic likely qualifies for protection due to the impact diabetes has on the endocrine system.
“Substantially Limits” – Likewise, the ADAAA gives us few strict definitions on what it means to “substantially limit” a major life activity. Just remember, the ADAAA was intended to significantly broaden the scope of protection and liberally expand the class of individuals who are protected. Therefore, it’s not meant to be difficult for a condition to be considered as substantially limiting a major life activity. Consider the following points:
- Under the ADAA more conditions will be considered to be “substantially limiting”;
- Employers should apply an individualized assessment, or “case by case” approach. Remember, an impairment or condition that was not substantially limiting to one employee may very well be to another. Don’t apply broad rules across classes from employees who have the same impairment;
- In most situations, mitigating measures should not be considered . In other words, employers should evaluate their employees’ impairment without factoring in whether medication, therapy, assistive devices, etc. improves, mitigates or controls their impairment;
- Episodic impairments or those in remission should be treated as active. It’s likely no defense to argue that a qualified impairment was temporarily in remission or suppressed when making an ADA determination;
- It only takes one – Under the ADAAA, impairment need only limit one major life activity to qualify for protection;
- Temporary conditions can qualify in many cases. For example, prior to the ADAAA most courts found that a temporary lifting restriction following an injury would not qualify for protection under the ADA. Now, employers are required to take a more individualized look at the temporary condition and use duration as only a factor, not the only factor. For example, a temporary condition that is expected to be fairly short in duration might very well be covered if it is sufficiently severe.
Reasonable Accommodation Requirements
While the ADAAA did not change or alter the definition of “reasonable accommodation”, court decisions over the past several years have. Reasonable accommodations are modifications to the job or working conditions that enable employees or applicants protected by the ADA to perform the essential functions of a job. If an employee or applicant qualifies for ADA protection, then the employer must consider all reasonable accommodations unless they can prove that the accommodation would impose an undue hardship on them.
We could devote an entire website to reasonable accommodation issues and there would likely still be unanswered questions. The following is just a list of some of the traditional types of accommodations that we see requested and also some of the more emerging trends:
- Making existing facilities accessible;
- Modified work schedules in certain situations;
- Modifying equipment and other modifications to work stations;
- Providing qualified readers or interpreters;
- Reassignment to an open position for which the individual is otherwise qualified to perform;
- Temporary light duty assignments;
- Extension of unpaid leaves of absence beyond that which is required by the FMLA;
- Telecommuting where physical presence on site is not an essential job function.
Employers should remember, though, they are not always obligated to implement the accommodation that has been requested by an applicant or employee. They can propose their own, alternate accommodation as long as it allows the employee or applicant to perform the essential job functions. The key here is communication between employer and individual. The EEOC and the courts encourage and expect an “interactive” dialogue between employers and their employees to address and resolve these issues and so does our employment team.
Also, employers can resist accommodation requests if they can prove that the accommodation imposes an undue hardship on them. Undue hardship is defined as “significant difficulty or expense in, or resulting from, the provision of the accommodation. It can include accommodations that would be unduly costly, extensive, substantial or disruptive or “would fundamentally alter the nature or operation of the business.” Some examples of accommodations that might not be “reasonable” include:
- Demanding a “helper” or assistant to perform essential job functions, i.e., asking for two people to do the job of one;
- Requesting second or third-chances to meet performance standards.
Before making any decisions, we recommend taking a very close, case-specific look at your situation to determine if an individual’s reasonable accommodation request should be permitted, or perhaps declined based on undue hardship. We encourage frequent conversations with the employee to encourage a fair, non-discriminatory resolution. And, of course, if you have case specific questions we would be more than happy to talk to you.
Medical Questionnaires and Fitness for Duty
Of course, the ADA protects qualified individuals with disabilities from adverse treatment during the job application and employment screening process. Likewise, the North Carolina Equal Employment Practices Act (“NCEEPA”) and the North Carolina Persons with Disabilities Protection Act (“NCPDPA”) apply to give additional protection to applicants (and employees).
One topic of increasing interest for employers is the use of medical examinations, medical inquiries, fitness for duty tests, etc. during the application process and during the employment relationship. When administered in a manner consistent with state and federal law, these inquiries can be an important part of the employment process. Such inquiries and examinations can also promote a safe working environment by identifying employees and applicants who will require reasonable workplace accommodations. If used improperly these inquiries can expose employers to liability.
For the most part, it is illegal for employers to conduct medical examinations or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature and severity of such disability.
Thus, an employer generally cannot inquire as to whether an individual has a disability at the pre-offer stage of the selection process. In other words, pre-employment (i.e., “pre-offer”) medical examinations are generally prohibited. Likewise, the prospective employer should not generally inquire about a job applicant’s workers’ compensation history.
However, an employer may make limited, pre-employment inquiries into the ability of an applicant to perform essential job-related functions. While, broad “disability related” questions during the application and pre-employment process are largely prohibited, an employer may lawfully ask all applicants “Can you perform the essential functions of this job, with or without reasonable accommodation?” or “Can you meet the attendance requirements of the job?” It’s helpful to have a list of the main requirements of the job when asking these questions.
Medical examinations or physicals are authorized under federal and North Carolina law after a conditional offer of employment is made and before the commencement of work on the job. These are commonly referred to as “post-offer, pre-employment” examinations.
The ADA specifically provides that a conditional offer of employment may be made to a job applicant contingent on the results of a physical and medical examination but only if:
- All employees in the same job categories are required to take such an examination regardless of disability and;
- The medical information obtained is collected and maintained on separate forms and in separate information files apart from the employee’s general personnel file. This information must be treated as a confidential medical record by the employer.
If the examination screens out an individual because the medical examination reveals that the individual cannot meet a job qualification standard, the employer should be able to show that the particular test that was applied, or medical standard that was used was “job related” and “consistent with business necessity.” Also, before declining an applicant the employer should consider whether a reasonable accommodation analysis should be followed if the individual qualifies for protection under the ADA.
False Representations During the Hiring Process (ADA & Workers’ Compensation)
The North Carolina Workers’ Compensation Act now gives employers the ability to deny responsibility for benefits claimed by employees who willfully misrepresent their physical capabilities during the hiring process. Benefits can be denied under the Act if the employer shows that during the hiring process:
- The employee knowingly and willfully made a false representation as to the employee’s physical condition;
- The employer relied upon one or more false representations by the employee and that reliance was a substantial factor in the employer’s decision to hire the employee; and
- There was a “causal connection” between the false representation and the employee’s injury.
Employers need to be very cautious to ensure that if they decide to ask these sorts of questions, they do so in compliance with the ADA and other state disability law. For example, while these questions may be presented legally to an applicant on a post offer, pre-employment medical questionnaire once a conditional offer of employment has been made, they might not be legally be asked on a job application (depending on the wording of the questions).
Our employment team has experience reviewing and drafting post-offer, pre-employment medical questionnaires that are designed to identify and protect employees requiring reasonable accommodations and protect employers from applicants who are not forthright during the hiring process. Let our employment lawyers help you stay ahead of the game.
Do you have questions about social media and computer usage issues in the workplace? If so, welcome the “New Frontier” of NC employment law. Are you ready? Is your organization? Are your employees?
The laws governing social media and computer usage in the workplace are developing, and the court decisions applying the laws are trying to keep up. Employers are increasingly finding themselves needing answers to questions that didn’t even exist a decade ago, namely: (1) How to use social media as an effective marketing, recruiting and branding tool; and (2) How (if at all) to use social media and computer access to monitor and regulate employee conduct (on or off the job).
Employers should be aware of the role and consequences of social media from start to finish in the employment relationship—from using technology in recruiting and hiring candidates, to monitoring and regulating employee conduct, to using social media as an effective business development tool—there are manageable risks, consequences and benefits all along the way.
For additional information on this topic, visit our Resources tab. We’d be glad to help your organization create new policies or review what you already have to make sure your social media/computer usage guidelines are legally compliant and enforceable.