Staying in good standings with the Americans with Disabilities Act

An employee named Andy comes into your office one morning, slumps down in the guest chair and spills a confession: "I've really been feeling depressed. I need some time off."

What do you do? If you just let Andy go home for a while you can't really be sure that you haven't been taken for a sucker. How do you know he really feels depressed? And even if Andy's sincere, how do you know he isn't just mistaken about the degree of his impairment?

On the other hand, if you refuse to grant Andy any time off his condition may worsen and he may experience a complete collapse. And you risk something else: a costly lawsuit for violation of the Americans with Disabilities Act. After all, Andy has claimed that he is suffering from depression, a condition covered by the ADA.

Tougher Laws

Doing the right thing by employees like Andy has become a lot tougher over the past year thanks to two legal events that have increased the risk to employers. The first was the amendment to the ADA that expanded the meaning of the term "disability" to include more physical and mental conditions. The second was a set of new guidelines from the Equal Employment Opportunity Commission (EEOC) that are scheduled to go into effect this year.

The ADA amendment has meant that more people than ever are protected against disability discrimination - intentional or otherwise. "One of the most common errors made by employers is assuming that only major disabling conditions such as blindness or deafness are covered under the law," says James McDonald, managing partner of the Irvine, Calif., office of the employment law firm of Fisher & Phillips. "But the definition of disability has expanded substantially."

In passing the amendment, "congress mandated a shift in focus in ADA cases from whether or not a given employee is truly disabled to whether or not the employer discriminated," adds McDonald. "As a result, you can no longer count on your lawyer to get you out of an ADA lawsuit on a technicality that the plaintiff was not really disabled under the law."

Added to this are the proposed regulations from the EEOC, which "represent a significant expansion of what the ADA will require from employers," says Robert J. Nobile, a partner with the New York office of Seyfarth Shaw LLP, an employment law firm. "The agency is really trying to bypass the whole issue of whether a given individual is disabled and move directly to the assumption that the person with an impairment is disabled regardless of his or her condition - and regardless of whether the impairment is temporary or permanent or substantially limits a life activity."

Note, too, that a growing number of courts consider behavior growing out of disability as protected under the law. It may be considered discriminatory to fire an employee for emotional outbursts toward a supervisor, for example, if you have prior knowledge that the employee has a protected condition.

Employees have many avenues to pursue legal action. At the federal level they can file claims with EEOC, which enforces the ADA.

The employee always has a right to sue in federal district court alleging a workplace violation. Employees can also file claims with the relevant agencies at the state or local level. In many states the employee can bypass the administrative process and go straight to state court.

Bring No Biases

The bottom line for all this is that the burden of proof has shifted to the employer to demonstrate that making an accommodation would create an undue hardship. "My advice to the employer is to always be liberal in the assumption that a condition is covered by the ADA, then move right on to engage in an interactive assessment to determine if the company can come up with an accommodation for the employee's condition," says Nobile. If you believe an accommodation is impossible or would result in an "undue hardship" to your business, you should be prepared to prove your position to the EEOC or, ultimately, in court.

Making a sensible accommodation may involve no more than scheduling some time off for the employee to resolve his condition. And that's just the approach that is prudent for Andy in the example that opened this article. "I would recommend giving Andy a leave of absence, but require him to bring in a doctor's certification that he is indeed suffering from depression," says Nobile. "Then at the end of the leave require him to bring in another certification from the same doctor certifying that he is able to return to work, with or without accommodation."

Sometimes the employee can help you find a sensible accommodation. "The law requires you to sit down with the employee and have an open discussion about the range of accommodations that might be possible," says McDonald. "Be prepared to work with the employee to come up with an accommodation such as an adjustment to the work schedule, or time off for surgery or treatment or therapy, or an adjustment in job duties."

Not all of the employee's suggestions may be feasible. "You do not have to accept the employee's suggestion for an accommodation, but you do have to go into the discussion with an open mind," says McDonald. "Engage in good faith negotiations. Keep conducting an interactive process with the employee until an effective accommodation is reached, or you decide that no reasonable accommodation can be made, or the employee stops cooperating."

"The most common mistake made by employers is acting on stereotypes," says Gary Phelan, a partner with the New York and Stamford, Conn., offices of Outten & Golden, a large employment law firm that represents individuals. Phelan is co-author of the book Disability Discrimination in the Workplace. "Ideas surrounding an employee's disability or impairment are often wrong and are often the product of paternalism," he says. You can avoid such stereotypes by opening up a dialog with any employee who claims a disability.

Small Employers Not Exempt

While the ADA applies only to employers with 15 or more workers, many state laws are more inclusive. "Smaller employers are likely covered under state laws where the number of employees is often lower," says Phelan. "For example, employers with as few as three workers are covered in Connecticut; with as few as four in New York state."

And while the federal law limits damages to $300,000 for compensatory and punitive damages, there is no cap on compensatory or punitive damages under many state and local laws.

Phelan offers four points of advice to employers: "The principle things are: 1) Be open minded. 2) Treat your employees as you would like your employer to treat you. 3) Don't act based on stereotypes. 4) Recognize that sometimes because of the effects of an impairment the individual cannot do the job."

Finally, solidify all of these concerns in a set of company guidelines that are designed to avoid legal friction and poor personnel management. "The critical thing is make sure you have policies and procedures in place to enable employees to come forward and raise issues of their conditions, and to engage in interactive assessments with the employees to develop accommodations," says Nobile. "And document all of these steps to provide support if you are questioned later."

Comments or thoughts on this article? Please e-mail [email protected].

Dangerous Employees

Suppose you have an employee who begins to act and talk erratically. Perhaps "Sandra" claims that she is being pursued by aliens. Maybe she even arrives at work bleeding from her scalp, claiming that her pursuers caught up with her. Your other employees may be understandably frightened by her and want you to get rid of her.

What can you do?
"You still have a direct threat defense," says Robert J. Nobile, a partner with Seyfarth Shaw LLP, New York. "If Sandra presents a direct threat to herself or others, that provides a defense for removing her from the place of employment."

Taking swift action to terminate Sandra does carry risk. "Employers are put in a precarious position: Do you want to face an ADA claim or a lawsuit for negligent retention if the employee harms others in the workplace? Speaking for myself, I think if I were an employer I would rather risk the ADA claim."

In many cases the best solution, says Nobile, is to put the employee out on administrative leave at full pay, and require him or her to undergo an assessment by a psychiatrist who can make a determination as to whether the employee is a threat to him or herself or to others.

- P.P.



Get More Information

For more information on disability discrimination, go to the Web site of the U.S. Equal Employment Opportunity Commission (EEOC) at www.eeoc.gov. Click on the menu item "Employers" for a set of documents.

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