New regulations in the federal laws relating to disability
have changed the rules that companies must
follow when an employee has a disability. Compounding
the issue is the fact that as medical research advances,
we are rapidly uncovering previously unknown
health conditions. While new technology has helped
physicians treat and detect physical disabilities, the diagnoses
of mental disabilities have increased at an unprecedented
rate. The tally of those who are so disabled
by mental disorders that they qualify for Supplemental
Security Income (SSI) or Social Security Disability Insurance
(SSDI) rose nearly two and a half times from 1987
to 2007. The change is even more staggering for children,
a group which has seen a 35-fold increase. The
increase in mental disability diagnoses has not only affected
families, but has also significantly impacted the
employer-employee relationship. As the law tries to
catch up to medical advancements, it is crucial to pay
attention to the gap between what medicine considers
to be a disability and how the law treats mental disabilities,
particularly as it relates to the rights and responsibilities
of both employers and employees.
What is a “Disability”?
A radical change took place for disabled workers’
rights with the passage of the Americans with Disabilities
Act of 1990 (the “ADA”). The overall purpose of the
ADA was to make American society more accessible to
people with disabilities. Keep in mind that the ADA
only applies to companies that employ 15 or more
full-time employees.
The ADA addressed a wide range of issues
affecting the disabled population, ranging from telecommunication
assistance for
the deaf to making trains and
buses more accessible to individuals
with disabilities. Though these new laws had a
large effect on society, the new employment regulations
included in the ADA were the most far-reaching.
The ADA required employers to provide reasonable
accommodations for employees with disabilities and
prohibits discrimination on the basis of disability in all
aspects of employment. Though passage of the
ADA was hailed as a victory for equal employment
rights, confusion (and much litigation) followed
around the single most important inquiry related to
the ADA: what is a disability?
Congressional Response
Amidst inconsistent enforcement of the ADA,
much from the uncertainty stemming from the vague
definition of disability, Congress enacted the
Americans with Disability Amendments Act (the
“Amendments”) in 2009. Prior to enactment of the
Amendments, the ADA allowed employees to bring
lawsuits against their employers if they could demonstrate
that their employer perceived them to have a
substantial, life-altering disability, regardless of
whether the employee actually suffered from the disability
or not. These requirements changed significantly
when the Amendments were enacted. One of the
most significant changes was that the Amendments
expanded the coverage to individuals bringing
ADA claims if their employer regarded them as having
a disability, regardless of whether the employee
actually suffered from one. The Amendments now only require that employees demonstrate that they were discriminated against because of an actual or
perceived disability, regardless of whether it was
substantial or not. The current law makes it far easier to be classified as disabled, because any perceived disability need not have to affect an employee’s life significantly. However, any perceived disability cannot be one that is “transitory or minor,” meaning that a common flu or sprained ankle will not provide an employee the protections of the law because they are not recognized as serious enough to prompt applicability of the ADA.
Practical Ways that Businesses Can
Avoid Claims
Though the legal responsibility has certainly
increased for businesses, three steps can be taken in order to avoid future claims. First, employers should not make assumptions or comments about
employees’ medical conditions, which could lead an employee to believe that any employment decision made was based on their real or perceived disability, even if that is not the case. Secondly, employers must train their frontline supervisors and managers
about what the new ADAAA regulations are, as these are the people who have the most contact with
employees on a day-to-day basis. Lastly, documentation of all actions and decisions and why they were made can be very important if an employee alleges
discrimination. These suggestions are not meant to be exhaustive, though they should provide a good start
for an employer looking to avoid ADAAA trouble.
In order to avoid costly litigation, employees and employers should be aware of the uncertainty present and carefully review their current ADA and ADAAA
policies and the respective procedures to be
followed should a claim arise.
Roy A. Banerjee is a founding partner of KPPB Law. His practice is focused on business litigation and dispute resolution. Fouad Kurdi is a second year law student at Georgia State University and works as a law clerk at KPPB Law.
Business Insights is hosted by the Law Firm of Kumar, Prabhu, Patel & Banerjee, LLC. Disclaimer: This article is for general information purposes only, and does not constitute
legal, tax, or other professional advice.