The draft “Diagnostic and Statistical Manual of Mental Disorders” contains proposals to expand the category of disabilities to include a number of disorders, including binge eating and pathological gambling. Some have taken that to mean that employers will have to accommodate such disorders, or face penalties under the ADA.

The truth: It’s unlikely, for at least two reasons:

• When psychiatry classifies some disorders as disabilities, that doesn’t automatically mean they’ll fall under qualified disorders under the ADA. In fact, some recognized mental disabilities are specifically excluded from ADA protection, such as compulsive theft and pyromania.
• The proposals are in draft form only, and the psychiatry association has three years to field and incorporate public comment into the proposals. So, nothing will happen prior to 2013, and there could be a host of changes by then.

Here’s an easy recipe for a lawsuit: A manager sees a resume and likes the candidate’s qualifications — but after meeting the applicant in person, immediately changes his mind.

That happened in one recent case.

An employee applied online for a job at a debt collection agency. She had eight years of relevant experience, and the hiring manager liked her qualifications enough to invite her in for an interview.

But once the candidate met the manager in person, she was immediately turned down for the job. Why? Apparently because she was blind.

According to the candidate, once the manager realized she was blind, he told her, “This isn’t going to work out,” and sent her on her way.

The woman tried to explain that she’d spent eight years doing similar work for eight years with the help of assistive technology for the blind, but again the manager told her she wouldn’t be considered for the job.

She took her complaints to the EEOC, which helped her sue. She won a $55,000 settlement.

This case highlights the need to train managers on disability discrimination while recruiting. Advances in technology have made it possible to accommodate more qualified employees than ever — and at a lower cost. According to a recent study by the Job Accommodation Network, 56% of accommodations cost nothing at all, while another 37% involve only a small, one-time cost ($600 on average).

As this case shows, failing to explore those options can create big legal problems — but that’s not all. As the EEOC’s lawyer in the case noted, the candidate had been successful performing similar work in the past, and company missed out on her skills and expertise.

Cite: EEOC v. Sentry Credit, Inc.

Answer True or False to the following (answers below):

1. If you supervise a disabled employee who can’t meet production standards for that position, the law calls for you to lower the standards for that person.

2. The Americans with Disabilities Act applies only to companies that have at least 15 employees.

3. Employees who abuse drugs are generally not protected by the ADA.

4. Employers are required to provide disabled employees with aids such as eyeglasses, hearing aids and the like.

Answers

1. False. The law calls for you to provide practical and reasonable accommodations to help the employee meet the general standards, but you are not required to lower standards.

2. True. The law recognizes that ADA accommodations might present too big a burden on small employers who have less flexibility.

3. True. Bans against and penalties for drug abuse can be fully enforced by supervisors and employers, and are not affected by the ADA. The one exception is if an employee enters a rehabilitation program and asks for help. Still, even if an employee is in rehab, you can discipline the employee for subsequent instances of abuse.

4. False. Employers are required to make accommodations in some instances, such as a chair, but generally aren’t required to supply healthcare “personal use” items.

A nurse was let go after doctors repeatedly complained she had trouble hearing their instructions. The woman wore hearing aides in both ears, but that didn’t help the predicament.

She was placed in another position temporarily and told she could look for another job in the hospital. Instead, she quit and sued the hospital for disability discrimination.

Apparently, the woman told the doctors about an easy way to fix the communication issue: All they had to do was stop listening to loud music in the operating room.

According to the EEOC, who took up the case, such a simple accommodation shouldn’t have a problem. The employer couldn’t get the case thrown out, and ended up settling for $100,000.

Cite: EEOC and Reherman v. St. John Health System

The facts:

An employee who was being treated for cancer suffered from dry mouth and throat as a side effect of the treatment, and had to consume large amounts of water throughout the day to combat the side effect.

As a result, she asked for two disability accommodations:

• Relaxing of a rule that prohibited drinks of any kind at workstations.
• Permission to leave the workstation often, and without asking, because of a frequent need to use the restroom.

She was granted both accommodations, and worked under those conditions for several months without incident except for one time:  A substitute boss who hadn’t been informed of the employee’s condition refused to all the employee to leave the workstation during an especially busy period. The employee wet her pants.

The employee sued for denial of a disability accommodation.

The employee said:
The temporary supervisor’s blunder caused extreme embarrassment, besides being an illegal breach of the agreement to grant her the accommodation.

The employer said:
The employee had worked under the accommodation conditions for several months without a hitch — in that the regular supervisor had never once denied the employee the accommodation. The incident in question was a simple mistake in communication, in that the temp supervisor wasn’t aware of the accommodation, and would have granted it had he been aware. Further, the employer maintained, the employee should have informed the boss of the accommodation or should have just left the workstation to use the restroom.

Who won the case?

Answer: The employee, who received $200,000 in damages from the employer.

Why: The court rejected the employer’s argument on two counts –

• The employee was under no obligation to inform the boss of the accommodation. The legal language for such an event is called continuing the “interactive process” — the back and forth between employee and supervisor to arrive at a reasonable accommodation. The court said the employee had already engaged in the interactive process and was under no obligation to continue it with another supervisor once the accommodation had been granted.
• Even a single incident of failure to accommodate can have more-than-trivial consequences. An employer must be vigilant about maintaining the accommodation at all times. In short, someone should have informed the temp supervisor about the situation.

Cite: A.M v. Albertsons LLC.

The scene:

“You know demoting Marty is going to present a little problem, right?” HR manager Diane Corsey said.

“You mean because of his cerebral palsy?” Darlene asked.

“I’m not saying you can’t or shouldn’t demote him,” Diane noted. “I just want to be sure it’s not because of his disability.”

“This is not about his disability,” Darlene affirmed. “It’s about his performance. It takes him forever to get anything done. He’s had warnings, and there’s been no improvement. In fact, it it wasn’t for his disability, I’d probably recommend firing him.”

“Have you talked to him about any accommodations we might make that would make the job a little easier for him?” Diane asked.

“No, because he hasn’t asked about accommodations,” Darlene said. “We talked about this when we hired him – that the law didn’t obligate us to offer him help if he didn’t ask for it. He’s pretty stubborn about being independent, you know.”

First move
“I know,” Diane agreed. “Still, I wonder whether we should make the first move on that.”

Darlene went through with the demotion, and Marty ended up quitting – and suing for disability discrimination. The company said Marty never asked for an accommodation, so the supervisor had gone by the book.

Did the company win? (Answer below.)

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Answer:

No, the company lost.

The HR manager and the supervisor had interpreted the law almost perfectly, the judge noted in the decision. Almost.

The Americans with Disabilities Act does state that in most cases, the employee is required to request a disability accommodation from the employer.

This was the exception, however.

When an employee’s disability is so obvious and the employee’s performance is below standards, the responsibility falls on the supervisor to approach the employee and suggest an accommodation for the disability.

Of course, the employee isn’t required to accept an accommodation, and in that instance the matter is closed. But for obvious disabilities, the supervisor must make the first move and ask.

Don’t ignore the obvious
The lesson here is that you just can’t ignore the obvious.

Being aware of the problem, the supervisor could have approached the employee and made a suggestion, especially because the employee was struggling with performance.

Broaching a subject like that can be difficult, but if you keep it performance-related, you’re on safe legal ground.

[Based on: Brady v. Wal-Mart Stores, Inc.]

Ever since the ADA Amendments Act got passed in January, employers and HR managers have been asking, “So, what does all this mean?” The Equal Employment Opportunity Commission has finally gotten around to giving some answers.

Last week, the EEOC laid out an explanation of employer responsibilities for following the act (knows as “ADAAA”).

• First, in a key passage, the agency summarized the intent of the act:

“The definition of disability … shall be construed broadly, to the maximum extent permitted by the terms of the ADA. The focus of an ADA case should be on whether discrimination occurred, not on whether an individual meets the definition of ‘disability.’”

Meaning: Besides broadening the circumstances under which a worker is considered disabled, the act also broadens the circumstances under which a worker can sue for disability discrimination. In other words, if a worker can show that an employer discriminated because of perceived disability — even if the worker wasn’t disabled — the worker has a case against the employer.

• The agency also put into focus some of the broader circumstances that make up a disability:

“An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.”

Here’s how that differs from earlier rules: Previously, an inability to do the physical requirements of a job wasn’t enough to qualify a worker as disabled. The individual also had to show some limitation in performing “major life activities,” such as walking, eating, etc. The EEOC’s interpretation of the new rules turns all that around to a point that a limitation in doing the specific tasks of a job could be enough to categorize someone as disabled.

The EEOC provides an example:

“Someone with a 20-pound lifting restriction that is not of short-term duration is substantially limited in lifting, and need not also show that he is unable to perform activities of daily living that require lifting in order to be considered substantially limited in lifting.”

Meaning: A long-term limitation on doing a work function is a disability.

• Short-term limits on major life activities now also fall under the definition:

“An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.”

Meaning: What was considered a “temporary condition” can now be considered a “disability.”

Any good news?
It’s not all bad. The regulations maintain the existing requirement that a worker must be a “qualified individual with a disability.” That means the individual “satisfies the requisite skill, experience, education and other job-related requirements … and who, with or without reasonable accommodation, can perform the essential functions of such position.”

So you still can require applicants and employees to meet essential job requirements, which, for most jobs, include regular and predictable attendance and conformance to the basic standards of performance and behavior.

And even in the case of the employee with a 20-pound lifting restriction, yes, that person may be disabled, but you still can disqualify the person because lifting is an essential part of the job and no reasonable accommodation is available.

As for the temporary part (”fewer than six months”) of the regs,  the EEOC recognizes that not all temporary conditions are disabilities:

“Temporary, non-chronic impairments of short duration . . . such as the common cold, seasonal or common influenza, a sprained joint, minor or non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely” generally are not disabilities.

Answer: The Fifth, Sixth, and Seventh Circuit Courts of Appeals have held that the ADAAA does not apply retroactively. In general, the federal courts have determined that Congress indicated no intent that ADAAA cases in effect at the signing date would be covered by the new law.

That, of course, is good news for employers and HR managers. The ADA amendments mostly make it easier for employees to win accommodations and put a greater burden on employers to offer accommodations. Specifically, the new law says employers will have to:

• make accommodations and treat as disabled any applicant or employee who qualifies as such, without regard to mitigating measures. Previously, the Supreme Court had ruled that mitigating measures such as medications or prosthetics would take the employee out of the official category of “disabled” and exempt the employer from offering workplace accommodations.
• take into account a broader range of activities, or “functions,” that are considered when classifying a worker as disabled: performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. None of those appeared in the pre-Jan. 1, 2009, ADA regs.

The Equal Employment Opportunity Commission offers guidance on the ADA amendment in the form of a new publication, “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.”

Here are three danger zones:

• Suppose you run across a Facebook photo of your candidate swilling beer in his underwear at a wild party. Would that push you to deny the person a job? In some states it’s illegal to deny a job to someone because of off-duty conduct that’s legal. (And while guzzling beer while wearing nothing but skivvies isn’t exactly model behavior, it’s not illegal.) The exception: If you can show a link between the depicted behavior and the person’s job duties — and how that behavior might interfere with the duties — that’s legal.
• If you use a third party service to conduct certain types of background checks, the federal Fair Credit Reporting Act (FCRA) requires that you give prior notice of the check to the applicant being investigated. And some states, such as California, require notification even if you do the check yourself. Of course, if you were searching Facebook, you wouldn’t want to alert a candidate who might rush online to remove offensive material. No one knows whether the notification rules in the FCRA apply to a Facebook search. And the only likely way we’ll find out is if there’s a test case.
• Let’s say you go on Facebook and stumble upon the candidate’s description of his battle against AIDS. Now, you may not even think about using health as a reason to deny the person a job. But if you do turn the person down and he raises the question of disability discrimination, the ball’s in your court to prove that you didn’t use the information to make the decision.

Question:
Does attention deficit disorder (ADD) qualify as a disability?  If so, how far does a company have to go to accommodate someone with ADD?

Answer: 
Each case has to be considered separately, says employment attorney Jonathan Segal, but ADD is often regarded as  a disability.

Two questions to ask an employee with ADD (after,
of course, getting medical documentation of the condition):

1. What can’t you do?
2. What do you want us to do to accommodate you?

Employers don’t have to change job requirements and standards to accommodate a disability. So if the person says he or she can’t meet deadlines because of the condition, and meeting deadlines is part of the job, that could be grounds for termination. But if the employee says, “I can do the job (and meet deadlines) but I need a quieter workspace, a different computer, etc.,” the company must decide if such steps would be reasonable.