• Accommodations Under the ADAAA: Five Sure Ways to End Up in Court
  • June 20, 2013 | Author: Jeffrey S. Kopp
  • Law Firm: Foley & Lardner LLP - Detroit Office
  • The ADA Amendments Act of 2008 (ADAAA) unquestionably imposes extensive requirements on employers and covers a broad range of medical conditions. As such, human resources professionals must grapple with the unique challenges that arise in every situation. However, there are some sure-bet ways to increase your chances of having to defend disability discrimination claims asserted by the EEOC or an attorney on behalf of an employee or former employee. Here are the top five mistakes that you want to surely avoid:

    1. Decide that the employee’s medical condition is not a “disability” because it is temporary. Before 2008, employers could often successfully defend ADA claims by challenging the employee’s medical condition as temporary or not substantially limiting. The ADAAA effectively eliminated those defenses by broadening the scope of impairments considered disabilities under the law. An EEOC investigator recently remarked, “We used to have to worry about establishing that a charging party was disabled, but now that we don’t have to do that anymore we just focus on reasonable accommodation issues.”
    2. Provide accommodations only for on-the-job injuries. A widely held misconception among some human resources professionals is that accommodations are only for on-the-job injuries. While it is true that some courts will uphold an employer’s decision to offer “light duty” work on a temporary basis for only those employees with work-related injuries, the ADAAA requires that employers must conduct individualized inquiries for all employees and applicants to determine whether they can perform the essential functions of the job, with or without a reasonable accommodation. This is true whether the impairment or injury is work-related.
    3. Only reinstate employees on medical leave if they are cleared to return to work without restrictions. Many employers have policies that state that employees seeking reinstatement must be restriction-free. These policies are plainly illegal. HR managers must conduct individual inquiries to determine whether an employee seeking reinstatement is qualified to perform the essential functions of the job with or without a reasonable accommodation. Because there may be reasonable accommodations that could allow even an employee with restrictions to ably perform his or her job, you cannot reinstate only those cleared to return to work without restrictions.
    4. Require only some employees in a particular position to satisfy alleged job-related requirements. Another problem occurs when employers treat employees in the same position differently with regard to their essential duties. The key to prevailing in disability discrimination cases is to ensure that marginal job duties are not considered “essential” and that all similarly situated employees are required to perform those tasks deemed essential. For instance, if only one production assembler on an assembly line with 10 other employees has to lift a part weighing more than 20 pounds, an assembler employee seeking reinstatement with lifting restrictions would have a strong argument that lifting is not an essential job function. Adopting written job descriptions (that are actually followed) is a good practice.
    5. Rely on non-medical professionals to conclude that an employee is not medically qualified. In ADAAA cases, courts make it very clear that employers may rely on the medical recommendations of doctors who impose restrictions that disqualify an employee from a particular position. As one federal court recently stated, “[i]t would be a burdensome standard indeed to require employers to discount the reasonable judgments of medical professionals when determining whether a potential employee can perform an occupational task.” Thus, obtaining a medical opinion about whether an employee can safely perform his or her job is preferable over that same decision being made by a non-doctor HR manager.

    The ADAAA accommodation process requires considerable commitment. To minimize litigation, practitioners should avoid the mistakes above, carefully address workplace accommodations (even if it seems obvious that an accommodation is not possible), rely on recommendations of medical professionals, document accommodation efforts, and consult legal counsel before making termination decisions.