Question:
How can we defend against a situation where we: a) accommodate a disabled employee; b) risk that the disability will get worse as a result of working and we’ll end up with a workers compensation claim?

Can we deny the accommodation based on the belief that the disability will worsen as a result of the person’s continuing to work?

Answer:
With one exception, you usually can’t deny an accommodation based on the belief that work in general will worsen the condition and lead to a comp claim, explains attorney Adele Abrams, who specializes in ADA compliance.

The exception: The U.S. Supreme Court ruled in favor of a company that denied employment to a worker whose disability would have worsened as a result of exposure to chemicals common in the company’s factory.

So, if you can show a specific danger to the employee, that makes for a stronger case for denial.

What happened

The Equal Employment Opportunity Commission (EEOC) went after Sears, Roebuck & Co., when the company terminated 235 former workers immediately following their return to work after being out on workers’ compensation leave.

Sears violated the ADA when it refused to provide reasonable accommodations to employees who were returning from workers’ comp leave, the EEOC said.

Result: Sears agreed to settle for $6.2 million, and each employee in the suit will receive around $26,300. That’s the largest total settlement in the history of the EEOC.

In addition, Sears improved its workers’ compensation leave process and posted notices regarding the decree, according to EEOC officials.

Do you think this settlement is fair? Let us know in the Comments Box below.

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.

(Answers at the bottom.)

True or False:

1. AD/HD is a recognized disability under the Americans with Disabilities Act (ADA).

2. Workers who suffer from AD/HD can demand that you omit deadlines from their job requirements.

3. If an adult employee was diagnosed with AD/HD as a child, that’s all the verification that person needs to be classified as an AD/HD sufferer.

Answers:

1. True. The ADA recognizes AD/HD as a valid disability. Of course, that also means that a person who claims to suffer from AD/HD and seeks ADA protections must also provide verification from a qualified healthcare provider.

2. False. An employee with AD/HD isn’t exempt from meeting any job requirements, including deadlines. The employee can request an accommodation – such as a quieter place to work and fewer distractions.

3. False. Children do outgrow AD/HD. In fact, some studies show that as much as 70% of children diagnosed with AD/HD don’t suffer from it as adults. So, while just about every adult who has the problem also had it as a child, not every child carries it into adulthood. To be classified as an adult AD/HD sufferer, the person must show current symptoms.

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

An Illinois man filed for a disability pension, claiming he was unable to do any work — and then he turned around and sued his employer for failing to accommodate his disability.

Tried to double dip

Here’s what happened: A police officer developed chronic obstructive pulmonary disease, a condition that makes breathing difficult.

His doctor cleared him for light duty, but no such positions were available. So the officer applied for a disability pension.

During a hearing, the man testified that his condition made it impossible to fulfill a police officer’s normal duties — “chasing a suspect or wrestling with an unruly one.”

Result: He was granted the pension.

But then he sued the department under the Americans with Disabilities Act (ADA), claiming it should’ve accommodated his disability by putting him on light duty.

The court wasn’t impressed. Taking his hearing testimony at face value (remember when he said he couldn’t fulfill an officer’s normal duties), the judge said, there was no way the man could do the job — with or without an accommodation.

Can’t claim one thing in one hearing and then deny it in another, the court ruled. So it dismissed the ADA suit.

Cite: Butler v. Village of Round Lake

Accessibility problems can stir up legal trouble, as well as limit the field of applicants available for open positions. To avoid those problems, talk with your IT department to see if your company’s recruiting site follows these guidelines laid out by the Job Accommodation Network:

1. Use text descriptions for images – Hold your mouse cursor over an image on your site, and a block of text should appear. That’s what special screen reader software used by the visually impaired will read to the viewer. Make sure the text is something descriptive and concise.
2. Caption audio and video – If your site includes audio or files, it should offer the option of a written transcript or closed captioning. Audio descriptions of video files should also be provided, if necessary.
3. Minimize reliance on color – View the site in a black and white display to make sure everything is clear to color blind viewers. Also, avoid using just color to convey information. For example, if an applicant skips a section of a form, don’t just highlight that area in red — also include text that says “required field.”
4. Allow easy keyboard navigation – Some viewers may need to navigate the site using only their keyboard. Therefore, it should be easy to scroll through links and fill out forms using the TAB key.
5. Give more options for applying – Forms may be difficult for some people to complete, so allow them to apply through e-mail, fax, mail or over the telephone. Also, include an easy-to-find EEO statement that also provides contact info to get help applying.

A truck driver applied for a job with a transportation company. During the interview, the hiring manager noticed the applicant had a prosthetic leg. Believing he couldn’t drive a truck safely, the managers didn’t offer him the job.

But despite his impairment, the applicant had a commercial driver’s license from the Department of Transportation, as well as several years of experience as a truck driver.

He sued, claiming disability discrimination.

The company tried to fight the claim but was unsuccessful and ended up settling for $56,500.

The lesson for managers: Don’t make assumptions about disabled applicants. You’re allowed to find out if someone can safely do the job — you don’t need to resort to discrimination.

Cite: EEOC v. KLLM Transport, 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.