August 1999 Managing:Leqal Issues 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 disabled employees 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 Coverage 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 protections. 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 ADA. Accommodation, Hardship 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.   • Home • Ask the Expert • Brainstorm • Stats • Site of the Week • Consumer Press Scan • Your Business On-Line • Calendar • Magazine & Site Archives • Staff • Site Map • Professional Jeweler Events • Guide to Electronic Services • Classified On-Line • JA Certification Study Session