HRMN 408 Assignment 1

Persons with Disabilities

• Definition of Disability

• Duty of Reasonable Accommodation

• Medical Examinations and Inquiries

• Other Prohibited Conduct

• Wellness Programs

• Direct-Threat Defense

CHAPTER 17

C o p y r i g h t 2 0 1 7 . S o c i e t y F o r H u m a n R e s o u r c e M a n a g e m e n t .

A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

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Book: The SHRM Essential Guide to Employment Law : A Handbook for HR Professionals, Managers, Businesses, and Organizations Author: Charles Fleischer Date: 2017

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The SHRM Essential Guide to Employment Law314

The Americans with Disabilities Act (ADA) is intended to be a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.

In the employment context, the ADA applies to employers that have 15 or more employees. It prohibits discrimination against a qualified individual with a disability with respect to application procedures, hiring, promotion, discharge, compensation, train- ing, and other terms, conditions, and privileges of employment. A qualified individual is a person who, with or without reasonable accommodation, can perform the essential functions of the job he or she holds or is applying for.

ALERT! An employee who applies for or receives benefits under the Social Security Disability

Insurance (SSDI) program may still be a qualified individual entitled to reasonable

accommodation under the ADA.

DEFINITION OF DISABILITY As used in the ADA, disability means a physical or mental impairment that substantially limits one or more major life activities. Major life activities include caring for oneself, per- forming manual tasks, seeing, hearing, eating, sleeping, walk- ing, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and work- ing. They also include major bodily functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

The physical and mental impairments that can give rise to a dis- ability would fill a medical encyclopedia. Generally speaking, any condition that can be diagnosed by a health care provider is an impairment within the meaning of the ADA. If the impairment

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Persons with Disabilities 315

does not substantially limit one or more major life activities, how- ever, it is not a disability for ADA purposes.

By statute, the following are not considered impairments for ADA purposes:

• homosexuality and bisexuality • transvestism and transsexualism • pedophilia, exhibitionism, and voyeurism • gender identity disorders not resulting from physical impairment • other sexual behavior disorders • compulsive gambling • kleptomania • pyromania • psychoactive substance abuse disorders resulting from current illegal use of drugs

Diagnoses that are generally unaccepted in the medical commu- nity will not trigger ADA obligations. For example, several courts have held that multiple chemical sensitivity syndrome falls in this category.

The existence of even a significant impairment does not necessari- ly render a person disabled. There is no such thing as a disability per se under the ADA since each impairment, no matter how serious, must still be shown as substantially limiting a major life activity. An individualized, case-by-case inquiry is required to determine wheth- er, as a result of the impairment, a particular employee is in fact substantially limited in one or more major life activities.

ALERT! Employees who suffer temporary illnesses and injuries, even though they are not dis-

abled under the ADA, may be entitled to workers’ compensation benefits (covered in

Chapter 11) and leave under the Family and Medical Leave Act (discussed in Chapter 8).

Special rules apply to substance abuse. Addiction to drugs or alcohol is an impairment that may trigger ADA coverage, depend-

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ing on the particular individual’s circumstances. However, employ- ers may discriminate against current, illegal drug users and persons who traffic in drugs at the workplace, whether or not they are addicted. Employers may also prohibit intoxication or use of alco- hol at the workplace and may impose discipline for poor perfor- mance or absenteeism related to alcohol use, even if the employee is an alcoholic.

In general, determining whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures, such as medication, medical equipment or appliances, prosthetics, and hearing aids. In other words, a person will be considered as having a disability even though, through use of mitigating measures, he or she is not substantially limited in any major life activity. Ordinary eyeglasses and contact lenses, however, may be considered in determining whether there is a substantial limitation in the major life activity of seeing.

Obesity When the Equal Employment Opportunity Commission (EEOC) amended its regulations after 2008 statutory changes to the ADA, it removed a regulatory provision saying obesity was not an impair- ment. The EEOC currently takes the view that severe obesity, with- out more, is an impairment that can support a claim of disability.

Although a few courts have agreed with the EEOC, most courts— including, significantly, three federal appellate courts as of this writ- ing—have concluded that weight is simply a physical characteristic, like hair color or left-handedness. As one appellate court said, weight “qualifies as a physical impairment only if it falls outside the normal range and it occurs as a result of a physiological disorder. [Emphasis in original.] Both requirements must be met. In other words, even weight outside the normal range—no matter how far outside that range—must be the result of an underlying physiological disorder to qualify as a physical impairment under the ADA.”

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Persons with Disabilities 317

DUTY OF REASONABLE ACCOMMODATION Included within the ADA’s definition of employment discrimination is failing to make reasonable accommodations to the known physical or mental disability of an otherwise-qualified applicant or employ- ee. Otherwise qualified means a person with a disability who, with or without reasonable accommodation, can perform the essential functions of the particular position he or she holds or is applying for.

The key concept here is essential. The employee has to be able to perform at least the essential functions of the job for ADA protec- tions to apply. In determining what is essential and what is merely marginal, the employer’s judgment is given substantial weight.

CASE STUDY: ESSENTIAL JOB FUNCTIONS Rite Aid, like other large pharmacy chains, requires its pharmacists to perform immunizations. Rite Aid’s job description for pharmacists lists immunizations as an essential job function, and Rite Aid requires its pharmacists to hold a valid immunization certificate. When Rite Aid first began imposing this requirement, a pharmacist (who had been with Rite Aid and its predecessor pharmacies for 34 years) asked for an accommodation because he suffers from trypanophobia—a fear of needles. According to the pharmacist, his condition causes him to become lightheaded, pale, and feeling like he is going to faint. The U.S. Court of Appeals for the 2nd Circuit agreed that giving immunizations was an essential job function, and it upheld the pharmacist’s termination.

QUICK TIP An employer should determine the essential functions of a particular position and include

them in a written job description before advertising or interviewing for the position. A

determination of essential functions after a disabled applicant has been rejected carries

less weight.

To discriminate means to fail to make reasonable accommodations for the known physical or mental limitations of an otherwise-qualified

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applicant or employee. Under this definition, the employee has the burden of identifying his or her disability and requesting the accom- modation, unless the need is obvious. The employer does not have an obligation to inquire about a nonobvious disability and, in fact, is prohibited from doing so. The employer may, however, make gen- eral inquiries as to the ability of an applicant or employee to perform job-related functions.

ALERT! When an employer suspects a psychological impairment that manifests as, for exam-

ple, moodiness, rudeness, or a short temper, the employer should address only the

unacceptable behavior and leave it to the employee to raise the matter of any underlying

disability.

Reasonableness of Requested Accommodation If an employee informs the employer of a disability and requests the employer to accommodate, the employer must do so unless the accommodation would impose an undue hardship—that is, if the accommodation would be significantly burdensome or expensive.

It is often difficult to know whether a requested accommoda- tion is reasonable or is an undue hardship. The ADA gives some examples of what is reasonable. For one, the employer’s facilities must be readily accessible and usable. Wheelchair ramps may have to be installed, and doorways and restroom facilities may need to be enlarged. Other examples include the following:

• restructuring jobs • modifying work schedules • relaxing workplace rules • making reassignments to vacant positions • modifying or replacing existing equipment • providing qualified readers or interpreters

The list of what is reasonable goes on, but it is not limitless. The courts have ruled, for example, that an employer has no duty to

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Persons with Disabilities 319

grant indefinite leave, since the ADA protects people who can per- form the essential functions of their job presently or in the imme- diate future. Nor is an employer required to create a new position tailored to an employee’s abilities.

What employers need to remember is that when a disabled employee or applicant for employment requests an accommodation, the employer must engage in a good-faith interactive process with the employee to identify accommodations that might enable him or her to perform the essential functions of the job. It could be that no accommodation will actually work, or that while a particular accom- modation might work, it is unreasonable or imposes an undue hard- ship on the employer. Should that be the case, the employer is free to terminate the employee or reject the applicant. However, if the employer fails to engage in an interactive process or delays doing so, the employer will almost certainly lose any ADA claim that follows.

CASE STUDY: PROVIDING AN INTERPRETER A nurse applied for clinical position with Johns Hopkins Hospital for which she was otherwise well qualified, except that she was deaf. Although she could read lips, she communicated more effectively using American Sign Language (ASL). As part of her application, she requested the hospital to provide her with an ASL interpreter at an estimated annual cost of $120,000 (against an annual hospital budget of $1.7 billion). The hospital declined to hire her, claiming that the cost was an undue hardship. A federal district court in Maryland ruled that the hospital violated the ADA by failing to provide the requested interpreter, because the cost was not an undue hardship.

Teleworking The courts have ruled that, generally, an employer is not required to accommodate a disability by allowing a disabled employee to tele- work. The reason is that most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be per-

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formed at home without compromising the quality of the employ- ee’s performance. But in situations in which an employee with a disability could in fact perform all essential job functions from home, teleworking might well be a reasonable accommodation. (Telework- ing is discussed in Chapter 20.)

Assignment to Vacant Position One form of reasonable accommodation involves assignment of an employee with a disability from a job he or she cannot perform to a vacant position he or she can perform. However, seniority systems normally prevail over a disabled employee’s interest in being assigned to a particular position. It is unreasonable, said the Supreme Court, to require an employer to violate a seniority system to accommodate a disability. Seniority systems, whether imposed under a collective bargaining agreement or unilaterally imposed by management, provide important employee benefits by creating and fulfilling employee expectations of fair and uniform treatment, job security, and predictable advancement based on objective stan- dards, said the court. However, in special circumstances the ADA rights of the person with a disability trump a seniority system. If an employee could show, for example, that the employer made fre- quent exceptions to its seniority system, then one more departure to accommodate a disabled employee might well be reasonable.

A related question is whether an employer may refuse to accom- modate a disabled employee who is qualified for a vacant posi- tion by selecting a more qualified person for the position. In other words, does the ADA require an employer to assign a disabled but otherwise qualified employee to a vacant position, or does it merely require the employer to allow the disabled employee to compete for the position? The EEOC takes the view that the employee should simply receive the job without having to complete, but the courts have generally disagreed with the EEOC and ruled that in most circumstances the disabled employee is only allowed to compete for the position.

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Persons with Disabilities 321

QUICK TIP The seniority problem is further complicated when a union asks for copies of the

disabled employee’s medical records to determine whether a company’s decision to

override normal seniority rules is justified. Both the EEOC and the National Labor Rela-

tions Board take the position that disclosure of the records is a matter for good-faith

collective bargaining.

Service Animals The U.S. Department of Justice defines service animals for pur- poses of the public accommodation provisions of the ADA as dogs that are individually trained to do work or perform tasks for people with disabilities, such as guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, and calming a person with post-traumatic stress disorder (PTSD) during an anxiety attack. Although EEOC regulations do not specifically address service ani- mals as an accommodation in the employment context, the EEOC has filed suit against a trucking company that refused to allow one of its drivers, who had PTSD, to travel with an emotional support dog prescribed by the driver’s treating psychiatrist.

One further point about accommodation: the accommodation must relate to the disability such that, if granted, it would enable the applicant or employee to perform essential job functions that he or she would otherwise be unable to perform. Employers have no obligation under the ADA to offer an accommodation that might make some nonwork-related aspect of a disabled worker’s life more convenient.

MEDICAL EXAMINATIONS AND INQUIRIES The ADA has special rules for medical examinations. Before actu- ally offering employment, an employer may never require an appli- cant to undergo a medical exam. While testing for illegal drugs is not considered a medical exam and is permitted before making a

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job offer, just about every other form of pre-offer medical test is illegal.

When the employer actually offers employment, the offer may be conditioned on the results of a medical exam if the following apply:

• All entering employees in the job category are subject to examination.

• The exam requirement can be shown to be job-related and con- sistent with business necessity.

• The resulting medical information is separately maintained and treated as confidential.

• The results are not used to discriminate against persons with disabilities.

If the results of the exam show that the candidate would be unable to perform the essential functions of the job with or with- out reasonable accommodation, or that the candidate would pose a direct threat (discussed below), then the offer may be withdrawn.

ALERT! The pre-employment medical exam may be conducted when passing the exam is

the only condition to an otherwise firm offer of employment. If any other conditions

remain, such as checking references, the exam will be illegal.

The EEOC defines medical examination as a procedure or test that seeks information about an individual’s physical or mental impairments or health. In determining whether a test is medical or nonmedical, the EEOC looks to the following factors:

• Is it administered by a health care professional or someone trained by a health care professional?

• Are the results interpreted by a health care professional or some- one trained by a health care professional?

• Is it designed to reveal an impairment or physical or mental health?

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Persons with Disabilities 323

• Is the employer trying to determine the candidate’s physical or mental health or impairments?

• Is it invasive (for example, does it require the drawing of blood or testing urine or breath)?

• Does it measure a candidate’s performance of a task (permitted), or does it measure the candidate’s physiological responses to performing the task? (not permitted).

• Is it normally given in a medical setting (for example, a health care professional’s office)?

• Is medical equipment used?

According to the EEOC, a psychological test that is designed to identify a mental disorder or impairment is medical, whereas a psychological test that measures only personality traits such as honesty, preferences, and habits is not.

Once an employee is on the job, the employer may require a medical exam but only if it is job-related and consistent with busi- ness necessity. Specifically, if an employer has a reasonable belief, based on objective evidence, that the employee’s ability to perform essential job functions will be impaired by a medical condition, or that a medical condition may pose a direct threat to the employee or others, the employer may require a medical exam.

Closely related to medical examinations are disability-related inquiries. In general, an employer may not ask an applicant or employee about a disability and may not ask questions designed to elicit information about a disability. An employer may, how- ever, ask whether an applicant or employee can perform job functions, ask about current illegal drug use, and ask whether an employee has been drinking.

CASE STUDY: SICK LEAVE POLICY VIOLATED ADA The prohibition against disability-related inquiries invalidated one employer’s sick leave policy. The policy required employees who

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were absent on sick leave to furnish a medical certification that included a general diagnosis of the condition that gave rise to the absence. The court ruled that since some diagnoses are bound to reveal underlying disabilities, the policy violated the ADA.

Of course, once an applicant or employee discloses information about a disability and requests an accommodation, the employer not only may make disability-related inquiries; the employer is required to do so.

QUICK TIP The EEOC has ruled that an employer may inquire about a worker’s disability in

connection with disaster planning, so that the employee’s need for special assis-

tance can be identified in advance. However, it is up to the worker to decide whether

assistance is necessary.

OTHER PROHIBITED CONDUCT The ADA also prohibits employment discrimination against indi- viduals who have a record of having a disability (whether or not they are currently disabled) or who are regarded as having a dis- ability (even if they are not in fact disabled). But even if an indi- vidual has a record of, or is regarded as, being disabled, if he or she is not actually disabled, then the duty of reasonable accom- modation cannot, as a logical matter, apply.

Another form of discrimination prohibited by the ADA arises when an applicant or employee is known to be in a relationship or be associated with someone else who has a disability. Suppose an employer knows that a job applicant’s spouse or child has a chronic condition that, the employer fears, may distract the applicant or require extra time off. A refusal to hire for that reason violates the ADA. As noted above, however, excessive absenteeism does not need to be tolerated. Nor is an employee entitled to reasonable accommodation under the ADA when it is not the employee, but someone with whom he or she is associated, who is disabled.

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ALERT! Other laws may, of course, apply in the so-called associational disability situations, such

as the Family and Medical Leave Act or state or local mandatory leave laws. (The FMLA

is covered in Chapter 8.)

Many states and local governments have their own disability dis- crimination laws that may be similar (but not identical) to the ADA. California, for example, defines disability as an impairment that limits one or more major life activities as contrasted with the ADA’s substantially limits. State and local laws often have thresholds lower than the ADA’s 15-employee requirement.

WELLNESS PROGRAMS A wellness program is an employer-sponsored plan to improve employee health. Wellness programs might encourage employees to exercise, lose weight, or quit smoking. Biometric and health screen- ings might be included in the program. Some programs offer finan- cial incentives to employees to participate, such as reduced health insurance premiums, gift cards, or cash. Employers see wellness pro- grams as a way to reduce absenteeism, lower health care costs, and generally improve workplace morale and productivity.

A potential problem with wellness programs is that they often involve disability-related inquiries and medical exams prohibited by the ADA, or they involve requests for genetic information in viola- tion of the Genetic Information Nondiscrimination Act (GINA). Under regulations issued by the EEOC in 2016, wellness programs are permitted as an exception to the ADA and GINA, but they must meet the following strict criteria:

• The program must be reasonably designed to promote health or prevent disease.

• Employee participation must be voluntary. • Employer-offered financial and in-kind incentives to encour- age participation are generally limited to 30 percent of self-only health insurance coverage. (The AARP has challenged in court

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the allowance of incentives up to 30 percent, claiming that such a large incentive effectively makes the program involuntary.)

• Employees with disabilities who cannot participate in the program must be reasonably accommodated by being offered alternative means of participating and earning any financial incentives.

• Employees from whom medical information will be obtained must be provided with a notice describing the medical information to be obtained, the purposes for which it will be used, and restric- tions on disclosure of the information. (The EEOC has devel- oped a sample form of notice, available on the EEOC’s website.)

Other laws potentially affecting wellness programs are the Employee Retirement Income Security Act (ERISA), discussed in Chapter 9, and the Patient Protection and Affordable Care Act (PPACA), discussed in Chapter 10.

Employers are well advised to consult appropriate professionals for help in designing an effective and lawful wellness program.

DIRECT-THREAT DEFENSE The ADA allows employers to exclude persons who pose a direct threat to the health or safety of the disabled person or to others in the workplace when the threat cannot be eliminated by reason- able accommodation.

The food industry, for example, may exclude persons from food handling who have infectious or communicable diseases that are transmitted to others through the handling of food if those persons cannot otherwise be reasonably accommodated. The ADA also permits enforcement of state and local laws deal- ing with food handling by persons with infectious or communi- cable diseases. The secretary of the U.S. Department of Health and Human Services is required to publish a list of such diseases and the manner in which they are transmitted.

Other situations in which the direct-threat defense applies include a worker with diabetes and hypertension who is at risk

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Persons with Disabilities 327

for coma and stroke and who seeks employment as a bus driver or a restaurant employee with epilepsy who is at risk for seizures and seeks a promotion to cook, a position in which he or she would be working with dangerous appliances and equipment. In both these situations, the employer may rely on the ADA’s direct-threat defense and refuse to place the worker in the posi- tion sought.

QUICK TIP The direct-threat defense is unique to the ADA and does not spill over to other areas of

discrimination law.

The conclusion that a direct threat exists cannot be based on igno- rance or irrational fear. When AIDS first came to public attention, but before the means of transmission were well understood, some employers simply fired or refused to hire infected individuals. The courts held that practice to be illegal under the ADA.

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