ADA and Your Employees
In the June issue, we looked at your obligations to accommodate disabled
customers. Now let's examine how the Americans with Disabilities Act protects
BY WILLIAM H. DONAHUE JR.
Few federal employment laws have created more confusion than the Americans
with Disabilities Act. Understanding the basic provisions and underlying
principles of ADA will help you recognize and deal with questions before
they become ruinously expensive lawsuits.
ADA applies to employers with 15 or more employees. If you have fewer than
15 employees, check with a local employment attorney to see whether your
state laws or city ordinances afford employees of smaller companies ADA-type
How It Works
"The law prohibits discrimination against a qualified applicant or
employee on the basis of a disability if he or she can perform the essential
functions of the job with or without reasonable accommodation," says
Robert Lipp, a partner with the law firm Franklin, Gringer & Lipp in Garden
City, NY. "The important terms are 'disability' and 'reasonable accommodation.'"
Lipp, who specializes in employment law and represents retail employers
in ADA cases, says ADA defines disability, but not comprehensively and does
not define reasonable accommodation. This leaves a lot of ambiguity. You
must look at the specific disability the employee claims and at the kind
of accommodation necessary for that employee to do the job.
ADA defines a disability as "a physical or mental impairment that
substantially limits one or more major life activities." Though the
law offers no firm definition, such a limit would prohibit someone from
functioning as an able-bodied person could. A paraplegic is prevented from
walking, a major life activity. A serious asthmatic is limited in the amount
of physical activity he or she can undertake. Physical activity is also
a major life activity.
According to Lipp, a condition that is annoying or even painful may not
substantially limit a major life activity. Conditions such as blindness,
deafness, paraplegia or quadriplegia are obvious disabilities.
Conditions such as obesity, cancer, leukemia, asthma, diabetes, anxiety
or post-traumatic stress disorder are less obvious, but may be considered
disabilities and entitle someone to reasonable accommodation in doing his
or her job.
Conditions such as alcohol or drug addiction can be disabilities, but
this doesn't mean you have to tolerate alcohol or drug use on the job. People
with these types of problems must be substance-free on the job and in a
treatment program to qualify for ADA protection.
Temporary conditions such as pregnancy are not disabilities under ADA.
Injuries that entitle an employee to state or private disability benefits
or workers compensation don't necessarily qualify as disabilities under
If someone has a disability, the question is whether he or she can perform
the essential functions of the job with reasonable accommodation.
An accommodation is reasonable if it doesn't impose an undue hardship
on the employer. The cost of the accommodation and the extent to which it
would disrupt the company's business are factors in determining whether
an accommodation is reasonable, says Lipp. A disruption of normal business
operations may or may not be an undue hardship.
An employer doesn't have to redefine a job so a disabled employee can
do it. An employee must be able to perform the essential functions of the
job. Non-essential tasks can and often must be reassigned to coworkers.
For example, if lifting heavy packages is something your salesperson is
supposed to do once a week but can't because of a disability, it would be
reasonable to assign that task to a coworker and shift one of the coworker's
tasks to the disabled salesperson. But if someone on your loading dock can't
lift heavy packages an essential function of the position
shifting that task to a coworker would be considered an unreasonable accommodation.
The most common accommodation Lipp sees among his retail clients involves
scheduling needs of disabled workers. "If someone has to go to the
doctor or therapist on a regular basis or needs time to prepare and eat
a special diet at set times, these are likely to be considered reasonable
accommodations," he says. Coworker or customer discomfort with a person's
disability is not a defense in an ADA lawsuit.
How Is the Law Enforced?
The aggrieved applicant or employee must first file a complaint with the
Equal Employment Opportunities Commission. Lipp strongly recommends the
employer retain the services of a lawyer at this stage the EEOC has
considerable enforcement power. If the EEOC finds an employer has discriminated
against a job applicant or employee, it may require the employer to hire
the applicant or reinstate a terminated employee; order back pay for the
time the applicant or employee was not working; award compensatory damages
for pain and suffering; award punitive damages if employer conduct was malicious
and egregious; and award attorney's fees.
Financially, attorney's fees and compensatory damages for pain and suffering
pose the greatest risk for the employer. The pain and suffering damages
are awarded primarily to compensate for emotional and psychological injury.
The amounts of these damage awards are impossible to predict with any certainty
and vary widely from case to case.
After the EEOC hearing, the employee or the employer still can go to
Federal Court for a trial of the case. This process is time-consuming and
expensive. The bottom line is to make sure you, as an employer, never get
in this position.
William H. Donahue Jr. is an attorney practicing in New Jersey.
Copyright © 1999 by Bond Communications.