Complying With An Evolving ADA - The Target Is Still Moving, but at Least Has Slowed Some When Congress passed the Americans With Disabilities Act (ADA) in 1990, it poorly defined some key terms -- such as disability and reasonable accommodation. As a result, many compliance questions have arisen. But in the past few years, the U.S. Supreme Court has handed down four ADA decisions that have helped define these terms. The new definitions have narrowed the ADA’s protective scope. Nevertheless, unchanged is employers’ responsibility in general to try to accommodate disabled workers. Some ADA ambiguities still remain, so compliance today is by no means easy. Let’s review ADA provisions, explain recent Supreme Court decisions and consider what employers should do to comply with evolving law. Wheelchair Ramps And Headsets The ADA bars employers from discriminating against employees based on mental or physical disability. Employers must offer disabled workers reasonable accommodation, as long as they can perform essential job functions. Typical accommodations include raising a desk so a wheelchair fits under it, providing a telephone headset for a worker with carpal-tunnel syndrome, installing wheelchair ramps and providing Braille elevator buttons. Other accommodations include changing disabled workers’ duties or moving them to other jobs. Not considered “reasonable” under the ADA are accommodations so expensive or disruptive that they place an undue hardship on a company. Disputes usually arise when employees and employers disagree about what is reasonable and what creates an undue hardship. But a 1995 Harris Poll showed that the average ADA-related workplace accommodation cost about $233, and federal tax credits and improved productivity often offset costs. Ambiguity Another area that can lead to disputes is whether an employee is actually disabled. The ADA itself is ambiguous, stating only that a disability is a physical or mental impairment that “substantially limits” someone from engaging in one or more “major life activities.” Unanswered were what constitutes a substantial limitation and a major life activity. Here’s how the U.S. Supreme Court answered some of these questions. Substantial Limitation Since 1999, the Court has handed down decisions that partly answered the question of what constitutes a substantial limitation: Sutton v. United Airlines and Toyota v. Williams. In Sutton, the Court held that the ADA doesn’t cover most correctable impairments -- such as severe myopia that can be corrected with eyeglasses or partial deafness that can be improved with hearing aids. Similarly, drug-treatable conditions -- such as bipolar disorder, epilepsy and diabetes -- may also fall outside the ADA’s scope, though each case must be evaluated individually. In Toyota, the Court set a more demanding standard for determining whether a worker is disabled. The case arose when an assembly-line worker developed carpal-tunnel syndrome and tendonitis that prevented her from performing the repetitive motions her job required. But she could perform nonrepetitive chores in her home and garden. The Court held that a worker’s “impairment” must severely restrict “activities that are of central importance to most people’s daily lives,” not merely activities that are central to a job. “Daily life” activities might include doing household chores. The Court held unanimously that because her impairments didn’t prevent her from performing tasks associated with daily living, they didn’t constitute a substantial limitation under the ADA. (But the Court didn’t find that carpal-tunnel syndrome and tendonitis fail to qualify as disabilities in every case.) What To Expect The Court hasn’t specifically defined what constitutes a major life activity, though Toyota reaffirmed that if the major life activity at work is working, an employee would be required to show an inability to work in “a broad range of jobs,” rather than a specific job. EEOC rules, though not binding on the courts, do define major life activities to include walking, talking, hearing, seeing, breathing and working. The key is to assess each situation on its specific facts. Only when accommodation creates an undue hardship for a company or for co-workers should an employer raise questions about the disability itself -- and ask an attorney how to handle it. The Toyota decision may result in some claimants filing lawsuits in state courts that have antidiscrimination laws allowing broader protection for disabled employees than the ADA. (The broadest of them is California’s Fair Employment & Housing Act.) A Trend Because these recent decisions tend to favor employers, the Supreme Court is likely to continue narrowing the ADA’s reach when it decides other pending ADA cases. If you have any questions about how to comply with the act, we would be glad to provide answers. Harassing a Disabled Worker Is Illegal Failing to reasonably accommodate disabled workers isn’t the only way to violate the Americans With Disabilities Act. The act also bars harassing workers on the basis of disabilities. The Equal Employment Opportunity Commission reports that disabled workers claiming to be targets of ridicule, embarrassing pranks, verbal and physical abuse, and other forms of cruelty filed more than 2,000 harassment complaints annually. Just as employers bear responsibility for preventing harassment based on, for example, sex, race and age, they also must create an environment that doesn’t tolerate harassing disabled employees. Is Fear of Flying A Disability? The Sept. 11 terrorist hijackings instilled a fear of flying in many employees who now either refuse to fly or insist on cutting back on business travel. And since the World Trade Center’s collapse, some emotionally traumatized employees have become afraid to work in skyscrapers. Shortly after the attacks, some employers let anxious workers cut back on travel or telecommute more often, for example. But if disaster-related fears persist, should employers treat those employees as emotionally disabled by their fear? Or would their refusal to fly or show up for work create an undue hardship on employers? These questions haven’t reached the courts, so we have no clear answers. If any of your employees seek an accommodation based on such disaster-related fears, one solution is to refer them to your employee assistance program. If that isn’t an option, and you feel that accommodation isn’t feasible, please contact your attorney for advice. Contact | Legal Disclaimer