By Tannera Gibson
The Americans with Disabilities Act Amendments Act (“ADAAA”) has been making waves since its enactment in September, 2008. The ADAAA was enacted with the intent to broaden protections afforded by the ADA. To meet the amended definition of disability, an individual must show 1) the existence of a physical or mental impairment that substantially limits one or more major life activities, or 2) a record of a physical or mental impairment that substantially limited a major life activity, or 3) that a covered entity took a prohibited action based of an actual or perceived impairment (“regarded as”).The significant number of changes the amendment made to the definitions of disability, substantial limitation, and major life activities, coupled with the expansion of the regarded prong of the ADA to permit recovery regardless of limitation on life activities, muddied the compliance waters.
Specifically, the ADAAA mandates that the substantial limitation prong be construed to apply a less demanding standard in order to cover a broader range of people, and eliminated the consideration of mitigating measures in determining whether an individual was substantially limited in a major life activity. With the exception of contact lenses and glasses, mitigating measures are no longer to be considered. Moreover, an employer may not require an employee to utilize mitigating measures. Where an employee is substantially limited in working, said
In that same vein, the ADAAA further extended covered major life activities to include a non-exhaustive list of major life activities such as learning, and bodily functions, which broadened the previous construction of the term to include only activities of central importance to most people’s daily lives. The law goes further to clarify that an impairment is not required to limit more than one major life activity to be considered a disability, and also clarifies that conditions that are episodic or in remission are considered disabilities if the impairment would substantially limit a major life activity when it is active.
Consistent with the spirit of the intent to allow the broadest coverage possible, leave as an accommodation has also become an expectation which attaches upon employment, unlike the FMLA which attaches after one year of service. Where the leave falls under an employer’s existing policy, the employer is obligated to grant a disabled employee the same access to those policies as non-disabled, similarly situated employees.
With the multitude of changes brought about with the enactment of the ADAAA, employers have struggled with uncertain circumstances while employee claims have sharply increased since 2009. The courts have addressed several uncertain circumstances, thereby providing guidance through the muddy waters.
The 4th Circuit, reversing the lower court in Jacobs v. N.C. Administrative Office of the Courts, held that a deputy clerk who suffered panic attacks while working at the front counter could be substantially limited in interacting with others. While the employer asserted that the plaintiff could not be so limited because she routinely answered questions and socialized with coworkers outside of work, the court held that a person need not live as a hermit to be substantially limited in interacting with others. The plaintiff’s ability to cope with the anxiety could not be held against her, as it was effectively a mitigating measure. Further, working at the front desk was not an essential job function, as there were over 20 other clerks who were able but not required to perform that function.
Jacobs teaches that instead of making assumptions relating to an employee’s circumstances, especially where the impairment is not apparent, an employer should request documentation certifying a substantial limitation.
In Cannon v. Jacobs, Field Svcs. N. Am., the 5th circuit held that refusing to hire an engineer on the basis that a rotator-cuff impairment prevented him from lifting over his head, was the result of regarding the engineer as impaired. Plaintiff’s impairment limited the major life activity of lifting, and as such, he was disabled under the ADAAA. Because the ADAAA only requires that an employee/potential employee be regarded as physically impaired, as opposed to being regarded as substantially limited in a major life activity, evidence that he was denied employment because of his impairment, was sufficient to meet his burden.
The ADAAA’s shift from requiring that a person be regarded as substantially limited in a major life activity, to requiring that a person simply be regarded as impaired places a greater onus upon employers to exercise due diligence before taking any action affecting employment. An impaired person must be given an opportunity to demonstrate fitness for the position at issue.
In Carters v. County of Cook, the 7th Circuit held that a hearing officer at a juvenile detention center who had an altercation with an inmate and subsequently developed an anxiety condition that prevented her from interacting with juvenile detainees was not disabled under the ADAAA. The court reasoned that the impairment did not prevent her from performing either a class of jobs or a broad range of jobs; rather, the condition only prevented her from performing a unique aspect of a single specific job related to her work as a hearing officer.
Carters is distinguishable from Jacobs, above, because the Jacobs plaintiff was substantially limited in interacting with others, affecting her ability to perform a class of jobs requiring interpersonal interaction. The Carters plaintiff was only limited in interacting with detainees, a duty related solely to her particular job as a hearing officer. This distinction is critical in determining whether a person’s impairment is a disability under the ADAAA. If said person’s impairment does not limit her ability to perform a task or tasks across the board, regardless of position, that impairment will not meet the ADAAA definition of disability.
The ADAAA’s requirement that short term impairments can be disabilities if sufficiently severe, and that leave should be granted as an accommodation, is illustrated by the 4th Circuit’s decision in, Summers v. Altarum Instute, Corp. There, a government contractor was terminated while on short term disability to recover from surgery on a leg injury. The contractor required 7 months of recovery time to permit him to regain his ability to walk correctly. The court held that the ADAAA is clear that short term impairments can be disabilities if they are sufficiently severe, as there is not a temporal element in the actual disability prongs of the ADAAA. Further temporary disabilities only require temporary accommodations, so it would be difficult for an employer to argue undue burden, as any burden would be limited to the duration of the temporary affliction. Leave should have been granted as an accommodation.
It is best to err on the side of leave as an accommodation to avoid a situation where an employer is forced to argue that leave was an undue burden. If, however, an employer does not have sufficient employees to cover the impaired employee while on leave, the length of the requested leave may be considered.
In Gogos v. AMS Mechanical Systems, Inc., a welder was terminated when he asked to leave work because his blood pressure spiked and caused vision problems. The court held that blood pressure is a condition of the type that is episodic and can be a disability if it’s substantially limiting when active. Plaintiff could not be required to medicate, and further, his substantial limitation must have been determined without reference to mitigating measures like medications.
It is important for an employer to avoid writing off an impaired employee because a substantial limitation isn’t always present when a condition is episodic. Seek medical documentation before taking any action, or refusing to accommodate. Courts have held that where medical records were insufficient to support an employee’s substantial limitation claim, the employee was not disabled under the ADAAA
In Weaving, v. City of Hillsboro, the 9th Circuit held that a sergeant with the police department was properly terminated based on interpersonal problems he experienced while interacting with peers and subordinates. Plaintiff’s claim that his ADHD substantially limited his ability to work and interact with others failed because he was able to engage in normal social interactions, and his interpersonal difficulties existed almost exclusively in his relationships with peers and subordinates. The court distinguished between an inability to get along with others and interacting with others generally, and noted that the ADAAA does not protect a cantankerous person who has mere trouble getting along with coworkers.
An employer is not required to tolerate bad behavior of an employee who seeks to hide behind the ADAAA. The ADAAA does not protect employees who have difficult personalities, even where the employee is impaired, if there is not a substantial limitation on a major life activity and does not affect the employee’s ability to perform a class of jobs.
The cases above illustrate the difficulties that employers have faced in determining whether an employee or potential employee should be afforded an accommodation pursuant to the ADAAA, and the importance of not taking action based on a perceived or actual impairment. However, an employer exercising due diligence with persons who are impaired so as to avoid a regarded as claim, and an employer seeking medical documentation to confirm impairments and limitations that are not apparent, will be less likely to run afoul of the ADAAA. Avoid snap decisions, and avoid taking action(s) without obtaining a full picture of the employee/potential employee’s particular circumstance and the employer will find the ADAAA easier to tread.