Human Resources News & Insights

5 big mistakes that will get you sued under the ADA

This year, it’s expected that nearly 30,000 ADA-related claims will be filed against employers with the EEOC. A big part of the reason: Some employers have gotten their wires crossed when it comes to complying with some of the more confusing aspects of the law.

In 2012 alone, the EEOC says 26,379 disability claims were filed, and the agency collected a whopping $103.4 million in damages resulting from those claims.

To help employers keep themselves from becoming part of those bleak statistics, employment law attorney Jeffrey S. Kopp from the firm Foley & Lardner, LLP, recently pointed out five of the worst mistakes employers make that expose them to EEOC discrimination claims and employee lawsuits:

1. Determining a temporary condition isn’t a disability

In the past, Kopp says it was common for employers to defend themselves against ADA-related claims by saying that a temporary medical condition wasn’t a “disability” because it wasn’t substantially limiting. But the passage of the ADA Amendments Act of 2008 (ADAAA) has killed the effectiveness of that stance. Yet, some companies still mistakenly cling to the same defense.

The ADAAA significantly expanded the definition of a disability, almost to the point where attorneys no longer need to establish whether or not an employee is disabled to present a claim. Reason: Now courts tend to just zero in on whether or not an employee’s medical condition is being accommodated.

In addition, as HR Benefits Alert reported in March, new guidance issued by the DOL on the FMLA provided insight into just how lenient the feds want companies to be when assessing whether an individual qualifies as disabled. It said employers shouldn’t conduct an “extensive analysis” of whether a medical condition is actually a disability — at least when it comes to determining an employee’s FMLA eligibility.

Bottom line: Just because a condition is temporary doesn’t mean it’s not a disability under the ADA.

2. Providing accommodations for on-the-job injuries only

Some companies believe that accommodations are only for individuals who became disabled on the job, according to Kopp. But they’re not.

Employers must always enter the “interactive process” to determine if disabled individuals can perform the essential functions of their jobs with or without accommodations — regardless of whether or not the disability was the result of an on-the-job injury.

3. Blanketly refusing to reinstate those with restrictions

It’s illegal to have a policy that says any individual seeking job reinstatement must not have any work-related restrictions. But policies like this still exist, says Kopp.

Work restrictions aren’t a deal-breaker. Employers must still enter the “interactive process” to determine if reasonable accommodations can be provided to help individuals perform the essential functions of their jobs despite their work restrictions.

4. Treating employees in the same position differently

Another problem, cited by Kopp, is that some employers treat workers differently when it comes to essential job duties despite holding the same position.

Picture this: There are six workers in similar positions on an assembly line. But only one is required to lift 30-pound objects. Now let’s say that worker suffers a back injury and is given a lifting restriction by his physician, which says he can’t lift anything over 15 pounds.

If the employer terminates the worker because of his lifting restriction, it’ll be hard-pressed to prove that lifting 30-pound objects is an essential function of his job — which leaves the firm open to an ADA-related discrimination charge. Reason: The other five similarly-situated workers had to do no lifting.

5. Failing to rely on medical opinions

Finally, Kopp warns employers not to rely on non-physicians to make determinations about whether employees can safely perform their jobs.

He says that during ADAAA cases, courts have directed employers to rely on doctor recommendations when trying to determine whether an employee should be disqualified from a position.

This article previously appeared on our sister website, HRBenefitsAlert.com.

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