Category Archives: disability

Overcoming the Barriers Disabled Americans Face

On July 26, it will be 25 years since George H. W. Bush signed into law the Americans with Disabilities Act, legislation that prohibited discrimination in employment, public accommodation and a number of other areas.

ThinkstockPhotos-457783527At the time of the signing, the president said …

“I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act. We’ve all been determined to ensure that it gives flexibility, particularly in terms of the timetable of implementation; and we’ve been committed to containing the costs that may be incurred … . Let the shameful wall of exclusion finally come tumbling down.”

Whether or not that “shameful wall of exclusion” has actually fallen is debatable. But with the release on Wednesday of a study titled the 2015 Kessler Foundation National Employment and Disability Survey, there’s now further evidence that people with disabilities are striving to work and are having some success in overcoming many of the barriers that have stood in the way. (Kessler unveiled the results to policymakers on Capitol Hill.)

Take the following finding in this study of 3,013 Americans with disabilities that was commissioned by the West Orange, N.J.-based Kessler Foundation and conducted by the University of New Hampshire: Nearly 69 percent of those surveyed are either working, looking for work or have worked since the onset of the disability.

“This clearly demonstrates that people with disabilities are ready and able to contribute their talents in the workforce,” says Kessler Foundation President and CEO Rodger DeRose.

Diving a little deeper into the data, the researchers found that Americans with disabilities who are employed work an average of 35.5 hours per week, with just over 60 percent of those working more than 40 hours per week.

The research did confirm, as might be expected, that many Americans with disabilities continue to encounter formidable barriers as they look for work, with the top three being the lack of sufficient education or training, employers that assume they can’t do the job and the lack of transportation. Then, once in the workplace, they face hurdles such as getting less pay than others in a similar job, negative attitudes of supervisors and negative attitudes of co-workers.

But, as mentioned earlier, the report does go on to make the point that a substantial percentage of the respondents are successfully overcoming many of these challenges. Of the 36 percent who reported employers assumed they couldn’t do a job, for instance, around 33 percent said they were able to overcome that barrier. Similarly, of the nearly 17 percent who said they were getting less pay than others in similar positions, nearly 39 indicated they were able to surmount that hurdle.

Earlier today, I asked John O’Neill, director  of employment and disability research at the Kessler Foundation, which of the findings surprised him most.

O’Neill specifically cited the finding that transportation may not be as significant a barrier as some have previously contended.

“When people think of barriers to job search, transportation is one of the first things to come to mind,” he says. “Yet of those looking for jobs, only 25 percent said they faced that barrier. Add, on top of that, that 42 percent of those facing that barrier had overcome it, and it would seem to be not as looming an issue as many people might have thought in the past.”

As for a takeaway for HR leaders, O’Neill points to the attitudes of supervisors and co-workers.

Roughly 16 percent of those with disabilities cited they had experienced barriers resulting from supervisors’ attitudes and about the same proportion experienced barriers resulting from co-workers’ attitudes, he says. But when you ask them about their ability to overcome those barriers, he adds, about 41 percent reported they were able to do so and 54 percent reported the same, respectively.

“Those figures,” he says, “are higher than I would have thought—and says that, while they’re [still] issues, people are finding ways to negotiate and work with their supervisors in terms of how they are being perceived.”

There no question a lot more work needs to be done when it comes to ridding the workplace of the many and varying barriers facing those with disabilities. But it’s also nice to see new research suggesting they aren’t insurmountable.

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Increased Skepticism Around EEOC Claims?

lawsuitAccording to at least one attorney, a recent Sixth Circuit appeals court ruling in a disability discrimination case underscores the federal courts’ increasingly cynical view of EEOC claims.

An overview of what led to the April 10 decision in EEOC v. Ford Motor Co.:

Jane Harris, a now-former Ford employee with irritable bowel syndrome, sought a job schedule of her choosing, which would allow her to work from home as needed, up to four days a week. Ford denied her request, determining that “regular and predictable on-site attendance” was essential to Harris’s “highly interactive” job as a resale buyer with the company.

Early in her career with Ford, Harris—who joined the automaker in 2003—earned awards and accolades for what court documents describe as her “strong commodity of knowledge” and “diligent work effort.” Her performance soon deteriorated, however, and by her fifth full year with the company, Harris ranked in the bottom 10 percent of her peer group within Ford. By 2009, her last year with the organization, she “was not performing the basic functions of her position,” according to court records.

In addition, Harris missed an average of 1.5 work days per week in 2008, and frequently arrived at work late and left early, court records indicate.

Harris’ irritable bowel syndrome naturally exacerbated the situation, with her symptoms contributing to greater stress. In turn, the added stress worsened her symptoms and made it more likely for her to miss work.

Court records suggest that Ford “tried to help” Harris, adjusting her work schedule and allowing her to work from home on an ad hoc basis, for instance. But, despite these measures being taken, Harris was still “unable to establish regular and consistent work hours” and failed “to perform the core objectives of the job.”

After Ford attempted to offer alternative accommodations—some of which Harris rejected—she was terminated in September 2009, as a result of what the company called “several years of subpar performance and high absences.”

In August 2011, the EEOC sued Ford under the Americans with Disabilities Act. While the Sixth Circuit ruled against Ford in an April 2014 decision, an appellate panel voted to rehear that ruling. The court ultimately reversed that decision, noting that an employee with a disability is not qualified for a position if he or she cannot perform the necessary functions of the role with or without reasonable accommodation. The court noted that telecommuting may be a reasonable accommodation per the ADA, except in a scenario in which regular attendance is essential to performing the job’s critical functions.

The EEOC “has been pursuing telecommuting claims on a regular basis,” says Mark Girouard, a Minneapolis-based labor and employment attorney with Nilan Johnson Lewis.

This decision, however, figures to make establishing these claims more difficult for the organization, says Girouard.

“Obviously, each position must be analyzed individually, but the Sixth Circuit’s description of the job at issue in this case could be applied to many other positions.”

In other words, there are many jobs where availability to participate in face-to-face interactions should necessitate regular and predictable performance, he says, adding that “the en banc decision makes clear that courts should defer to employers’ business judgment on that issue.”

Last week’s decision “adds to the list of recent major losses for the EEOC,” says Girouard. “Separate and apart from the substance of the decision, the fact that the EEOC lost another major lawsuit highlights the increasing skepticism applied to the EEOC by the federal courts.”

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Hiring Those with Autism Is Best Help You Can Give

This coming Wednesday, April 1, marks the beginning of National Autism Awareness Month 2015. (And no, this post has absolutely 181426919 -- autism awarenessnothing to do with the fun side of April 1. This post is absolutely serious.)

The following day, April 2, is World Autism Awareness Day, in case you need double impetus to give this more than just a passing thought — kind, indifferent or otherwise.

This United Nations site announces the 2015 theme for the World Autism Awareness Day as “Employment: The Autism Advantage.” It cites a surprising (to me) statistic, that more than 80 percent of adults with autism are unemployed.

Which is a shame for employers (maybe even shame on employers), considering this that follows from the U.N.:

“Research suggests that employers are missing out on abilities that people on the autism spectrum have in greater abundance than ‘neurotypical’ [a.k.a., neurologically typical] workers do — such as heightened abilities in pattern recognition and logical reasoning, as well as a greater attention to detail.”

We’ve certainly found similar evidence of special gifts employees with autism can bring to the workplace in features and news stories we’ve published in the near and not-so-near past. This 2013 feature, “Diversity of Thought,” quotes Marcia Scheiner, president and founder of the New York-based Asperger Syndrome Training and Employment Partnership, which helps college graduates with autism obtain professional positions.

As she puts it, individuals with autism can demonstrate excellent skills in a variety of areas when given a chance; many are incredibly loyal, tend not to leave their jobs, are detail-oriented and can be tremendously focused, which often leads to high productivity.

This feature, from 2010, “Aspies in the Workplace,” also highlights the gifts autistic workers can bring and the business sense it makes to hire them, as well as the adjustments employers can easily implement to ensure they’re comfortable and allowing those gifts to shine.

More recently, this piece by Mark McGraw from early last year provides proof of the therapeutic value employment brings to those with autism, and some very specific ways employers, and HR, can ensure the “win-win” for all. Clear communication and lots of structure, all three stories indicate, are key.

I’ve heard from experts — and from my oldest son, who teaches autistic high schoolers at a special school outside Philadelphia — that all too often, federal and state funding and services for autistic kids dry up, or at least substantially shrink, once they turn 21. It’s called “Aging Out,” as this piece in the New Jersey Monthly eloquently explains.

Those are the teens my son is teaching, the ones who will — in a few short years — be far more on their own than they are now, just trying to survive in a grueling, grown-up world. Many have great parental support, but parents don’t live forever and money for therapy, services and education doesn’t grow on trees.

For them, getting the chance to prove their value in a work environment that augments that chance has to be the biggest boost imaginable. Such a step toward security would surely quiet their parents’ nightmares as well.

Add to that the boost to the employer — not just in terms of work ethic and productivity, but reputation too — and the goal of turning that 80-percent unemployment figure on its ear becomes a big, beautiful no-brainer.

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Yes, a ‘Cantankerous Jerk’ Can Be Fired

177030950 -- angry bossCan a person be lawfully terminated just for being a hard-core grump? Yes, says the U.S. Court of Appeals for the Ninth Circuit in the case of Matthew Weaving v. City of Hillsboro.

Weaving, an officer with the Hillsboro (Ore.) Police Department, was cited several times over a period of years for conflicts with fellow employees. A formal report — issued after a departmental investigation of an officer’s grievance about him — concluded he was “tyrannical, unapproachable, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” (That’s quite a list.)

Based on the investigation, which also found Weaving had created a hostile work environment and did not possess the emotional intelligence to work in a team environment, he was fired Dec. 11, 2009, after three years with the force.

He sued under the Americans with Disabilities Act, claiming he had been diagnosed with attention deficit hyperactivity disorder, and this condition caused his work conflicts and limited his ability to work or interact with others (a requirement of his job).

He contended his ADHD was a disability, which a district court upheld, but the appeals court reversed. (For everything you ever wanted to know about Weaving’s contention and how both courts viewed the ADHD/ADA issue, see both links above.)

Considering Weaving’s argument that ADHD falls under the ADA, I thought I’d share several earlier blog posts from some of us at HRE that delve into other expansions of, or attempts to expand, the definition of disability under the law.

This one, by David Shadovitz, delves into an appeals court ruling establishing that temporary impairments are now allowed under the law so long as they’re severe enough.

This post, by Mark McGraw, also gets into the temporary-condition allowance, in a different lawsuit, and mentions the American Medical Association’s new definition of obesity as a disease, adding exponentially to the ranks of the disabled.

And this from me a few years back highlights an informal letter issued by the Equal Employment Opportunities Commission warning that requiring a high-school diploma from a job applicant might violate the Americans with Disabilities Act because the requirement could effectively screen out anyone unable to graduate because of a learning disability.

Meanwhile, in this latest case, employers have good reason to breathe a sigh of relief, says Myra Creighton, a partner with Atlanta-based Fisher & Phillips. The case, she told me, “upholds the principle that employers can enforce their employee-conduct standards governing personal interaction without worrying that the employee will blame his or her bad behavior on his or her disability.”

The ruling doesn’t, however, rule out ADHD as a disability if the plaintiff can prove the condition limits his or her ability to work.

As the Practical Law piece in the first link above puts it, the Ninth Circuit majority held “that the employee’s condition … did not rise to the level of disability [and argued] that a different holding … would open employers to potential liability each time they take an adverse-employment action concerning a hostile employee.”

The dissenting minority, however, it says, notes that “employers are [still] left in the complicated position of having to determine whether an individual, who has been properly diagnosed with ADHD, should be deemed disabled or just a jerk.”

 

 

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Employers Missing ADA Coverage in FMLA Cases

Employers are missing half of Family and Medical Leave Act cases involving employees’ serious illnesses that should also have been reviewed for Americans with Disabilities Act eligibility.

462011275 - disability and gavelThis according to Chicago-based ComPsych, in this report issued last week, June 24 to be exact, titled The Risk of Non-Compliance With ADA. The report breaks down by certain industries the percentage of FMLA cases that need ADA review, yet are being missed.

They include: retail at 13.2 percent, health services at 10.9 percent, manufacturing at 6.8 percent, public administration at 6.7 percent, trades at 6.5 percent and professional services at 5.9 percent.

These numbers, says Matt Morris, a vice president and licensed attorney at ComPsych, are “significant.”

“A common mistake employers make,” he says, “is to deem an FMLA leave request as ineligible, then not review it for ADA purposes.”

The potential consequences of such oversight “can be severe,” says Morris, “since one ADA misstep can lead to an investigation of the employer’s entire leave practices.” Hence the rash of recent ADA class-action lawsuits by the Equal Employment Opportunity Commission, he adds.

Indeed, the EEOC is coming off a record 2013 in terms of ADA penalties paid out by employers, a whopping $109.2 mill. Here are just three of the most sizable payments: $6.2 million by Sears Holding Co. involving 235 plaintiffs, $3.2 million by SuperValu involving 110 plaintiffs and $20 million by Verizon.

I asked Morris for a good example of an ineligible FMLA leave that would be covered under the ADA. Here’s what he said:

An employee has been at the company for six months and breaks his leg. He needs time off for rehab and to recoup, but is denied FMLA leave because he hasn’t been employed long enough. In this case, the employer should still review for ADA accommodation.”

Basically any ineligible FMLA leave for the employee’s own health condition (obviously not for baby bonding, etc.) has the potential to be an ADA leave, he tells me. “Although a ‘serious health condition’ under the FMLA and a ‘disability’ under the ADA are both two different standards, they are each very likely applicable to a health condition that forces someone to be out of work,” says Morris. And while the FMLA requires an employee to have been employed for 12 months and worked 1,250 hours in the last 12 months in order to be eligible, the ADA has no such standard. So, an ineligible FMLA employee still may have an ADA disability.

Perhaps the most common ADA misstep is waiting for an employee to “raise her hand” to request an ADA accommodation specifically or by name, Morris says. Courts have been clear that the “notice requirements under the ADA are nearly identical to those under the FMLA,” he says, but employers often don’t recognize that requests for FMLA leave are “hidden” requests for an accommodation — i.e., leave — under the ADA.

Interestingly, he tells me, employers all share a common misstep, which is that the company created and tried to enforce a standard policy — strange, in part, because generally this is exactly what HR tries to do: create uniformity and equality.

“But … they don’t consider whether the leave should be continued on a case-by-case basis,” says Morris. Maybe the more important thing is to note how easily one mistake can turn into something broader. What can happen — and, in fact, has been the way most of these cases start, he says — is:

1) The employee has an adverse action taken against her (usually, she’s fired).

2) She files a charge of discrimination with the EEOC (such charges are free to file, don’t require a lawyer, and often list several bases on which the employee believes she was discriminated against — for instance, race, sex, religion and then disability).

3) If the EEOC determines that, in that one case, the disability policy had a uniform cutoff — what it calls an ‘inflexible’ policy — it then uses its subpoena power to request the names of all employees who were subject to that policy (fired because they crossed that inflexible line).

4) The EEOC then sues on behalf of all, or most, employees subject to the policy and suddenly there are hundreds of plaintiffs.”

Thus far, this has only arisen because the policy was clear (“if you take more than X amount of time on leave, your job will not be protected”), but even if employers are detecting the right employees [for FMLA leave], they still have to have the expertise to apply such ADA standards as “reasonable accommodation,” “undue hardship” and “significant limitations (of a major life function)” appropriately.

So what should you be keeping top-of-mind? Here’s Morris’ caution:

Employers have been pining for three to four years for additional guidance from the EEOC on how to conduct the interactive process (how to determine a ‘reasonable’ amount of time, etc.). Chances are, given indications from the EEOC itself, the guidance will not come soon. Until then, employers will still be held responsible for appropriately applying these vague standards to a host of factors (e.g., What does the employee do? Could others help? Are there other jobs she could do? How long will the disability last? Are there things [you] can do to help reduce the time?)”

Hope this is helpful.

 

 

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A Big Potential Win for Telecommuting

telecommutingJane Harris, a resale steel buyer for Ford Motor Co., suffers from irritable bowel syndrome and sought accommodation from her employer to work from home four days per week, as her job mostly involved contact with suppliers and co-workers via phone and computer. Ford denied her request and later terminated her.

Harris and the Equal Employment Opportunity Commission filed suit against Ford, charging that the Dearborn, Mich.-based automaker had violated the Americans with Disabilities Act when it denied Harris’ request to work from home as an accommodation for her IBS. The agency also charged that Ford’s firing of Harris was in retaliation after she filed a charge with the EEOC alleging discrimination under the ADA.

A lower court ruled in the company’s favor, holding that attendance at the job site was an essential function of Harris’ job and that her disability-related absences meant she was not a “qualified” individual under the ADA. The court also said the EEOC could not prove Harris’ firing was retaliatory because it was based on attendance and performance issues that pre-dated her charge filed with the EEOC.

Earlier this week, the U.S. Court of Appeals for the Sixth District reversed the lower court’s rulings on both counts and said that the EEOC’s claim against Ford has enough merit to go to trial.

EEOC General Counsel David Lopez hailed the ruling as “the latest in a series of cases ensuring persons with disabilities are allowed the opportunity to use their talents fully.” The court’s decision “reaffirms the employer’s important obligation to provide a reasonable accommodation unless it can show it results in undue hardship,” he said in a statement.

For its part, Ford issued a statement that seems to suggest it will appeal the decision:

“Ford is disappointed with the court’s decision, which conflicts with earlier rulings by this court and other courts. We are evaluating our options for further review.”

Pavneet Singh Uppal, an employment attorney and regional manager partner with Fisher & Phillips in Phoenix, told the Phoenix Business Journal that the ruling could mean telecommuting is a viable option for accommodating disabled employees:

Under the ADA, regular and predictable attendance is usually considered to be an essential job function. In prior years, attendance meant physically showing up for work in person. However, as this case shows, employers must respond to technological advances. … [Telecommuting] cannot be summarily rejected and must be considered as one possible type of reasonable accommodation for a disabled employee.”

 

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Service-Dog ‘Fakers': Could It Happen at Work?

464734925 -- guide dogsThis was certainly intriguing: a release from KCRA in Sacramento, Calif., about a hearing before the California State Senate examining what appears to be a real problem out there: people masquerading their dogs as guide dogs for the disabled so they can bring them along to wherever they’re going.

I guess they would miss them that much, which says something about the kind of person who would conjure up such a scheme. Worse yet, what kind of person would actually then “play act” a disability, namely blindness?

“This is a big issue in California,” Phyllis Cheng, the executive director of the Fair Employment and Housing department, says in testimony. In fact, here is the entire senate-hearing report:

Here, too, is the Fox 45 news report on the problem:

So I’m wondering, could this become a problem in the workplace? I asked two employment attorneys — Keisha-Ann Gray at Proskauer (HREOnline‘s “Legal Clinic” columnist) and James McDonald, managing partner of the Irvine, Calif., office of Fisher & Phillips — for their takes on this.

They tell me that, although there is no hard-and-fast rule under the Americans with Disabilities Act requiring employers to allow guide dogs to accompany disabled employees, every employer with 15 or more employees is required to try and make a reasonable accommodation if the request is made, unless that accommodation would cause an undue hardship to the business or present a direct threat to health and safety.

Could this kind of cheating actually lead to workplace “dog parks” though? Well, maybe not dog parks, but both say yes, they could see this kind of problem occurring at work. Such widespread scheming is definitely humanely possible, they say. “I know of people personally who claim their pets are service animals and they put a little vest on the animal so they can go in restaurants, etc.,” McDonald says.

Neither attorney gave much credence to this getting out of hand, necessarily, in corporate America. Thinking realistically, if you consider the fact that employees bringing dogs to work would then have to care for them for the entire day (and we’re talking food, exercise and potty breaks), “that might mitigate this a little bit,” McDonald says.

The bottom line to keep in mind, says Gray, is that this is the very type of situation that could get you in legal trouble if not handled properly. Faking questions aside, “once the employer is aware they have someone who can perform essential functions of the job, but would need help to perform the job based on a disability,” that employer must engage in a reasonable-accommodation dialogue.

And although “reasonable” does mean it does not create undue hardship or safety hazards, proving that a particular dog might bite or “seems irritable” could get dicey.

I’m thinking trying to nail someone for faking a disability or service-dog credentials could get dicey, too.

Best advice, from Gray: “If you’re thinking of denying a person a request for a reasonable accommodation, for whatever reason, get counsel involved.”

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Momentum Building for Putting Disabled to Work

Nice to see how much attention RespectAbilityUSA has gotten in just a little more than a month since I posted this plea to employers by the Washington-based nonprofit to get more disabled Americans into the workforce.

122470463 -- disabled execThe group — dedicated to empowering people with disabilities — made sure I saw this latest release touting all the big names to have signed on since that plea went out Jan. 13, including BMX bike legend and host of MTV’s The Challenge, T.J. Lavin; Delaware Gov. Jack Markell; U.S. Rep. Pete Sessions, R-Texas; U.S. Rep. Brad Sherman, D-Calif.; and Paralympian Matt Cowdrey.

Yes, the word is getting out. So much so that Lavin is now starring in a new public-service ad for RespectAbilityUSA that started airing Feb. 14. In the ad, he says “whether it is me, you, or someone who just wants to work — we all should have the same opportunity to achieve the American dream.”

Last month’s post included results from a just-completed RespectAbility poll showing three out of four people with disabilities surveyed value a job and independence over government benefits. This latest announcement, one short month later, mentions companies that are starting to get it, such as Walgreen’s, EY and AMC. They “have found people with disabilities to be highly valued employees who drive their company’s productivity as loyal, safe employees,” the release says.

Now, says Respectability President Jennifer Laszlo Mizrahi, “it is time for other companies to open new doors for people with disabilities.”

“The bottom line,” she says, “is that people with disabilities want a hand up, not a hand out. They want to work side-by-side with people who don’t have disabilities, make their contribution to society, pay their taxes and achieve the American dream.”

I like how Lavin puts it, too: “Recognize the disability, respect the ability, but imagine the possibility.”

We’ll keep watching this momentum and where it heads. In the meantime, employers and their HR executives should be bracing for two final rule revisions — issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs and impacting affirmative-action plans for veterans and people with disabilities — that go into effect on March 24. I have a news analysis appearing soon on our website, HREOnline.com, about these new rules and what they mean, and will share a link here when it goes live.

You might say the rules, revising the OFCCP’s Vietnam Era Veterans’ Readjustment Assistance Act and Section 503 of the Rehabilitation Act, are the government’s way of ensuring this momentum does, indeed, go forward.

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Broadening Definitions Under the ADA

In case you missed it, employers were recently given further insight as to what qualifies these days as a disability under the ADA Amendments Act of 2008.

On Jan. 23, the Fourth Circuit Court of Appeals ruled that, as long as a temporary impairment is sufficiently severe, it would qualify as a disability, reversing a district court decision regarding a wrongful-discharge claim.

200249331-001The case involved Carl Summers, who, as a senior analyst for Altarum Institute, fell and injured himself while exiting a commuter train. Summers, who underwent leg surgery and was told by doctors he might not be able to walk normally for at least seven months, was provided with short-term-disability benefits. He suggested that he start working part-time from home and gradually return to full-time work, but representatives from Altarum failed to follow up on Summer’s return-to-work plan or suggest any alternative reasonable accommodation. The firm eventually terminated him, installing another analyst in his position.

In Sept. 2012, Summers filed a complaint under the ADA, alleging he was wrongfully terminated because of his disability.

In its ruling, the Fourth Circuit said “an impairment is not categorically excluded from being a disability simply because it is temporary” and that Summer’s alleged impairment “falls under the amended Act’s expanded definition of disability.”

I asked Paul Mollica, of council with Outten & Golden LLP in Chicago, for his thoughts on what the decision—which many believe could be the first ruling of its kind under the ADAAA—means for employers.

Going forward, he told me, employers are going to need to accept that the “lessons learned up to this point aren’t true anymore” and “retool” accordingly.

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The Ever-Expanding ADA

Gavel and JudgeMany employers are already unclear on what employees are protected under the American with Disabilities Act, and unsure of their responsibilities in complying with the ADA.

And, the ranks of the disabled continue to grow, as we recently saw when the American Medical Association issued guidelines classifying obesity as a disease.

An appeals court’s recent decision in the case of Anthimos Gogos v. AMS Mechanical Systems Inc. may broaden the ADA just a bit further, to include individuals with temporary conditions.

The details, according to the lawsuit:

Anthimos Gogos began working as a welder and pipe fitter for AMS in December 2012. The following month, Gogos’ blood pressure spiked significantly, and he experienced intermittent vision loss. Soon after arriving for work on Jan. 30, 2013, Gogos discovered redness in his right eye. With his supervisor’s permission, Gogos left to seek medical treatment, but encountered his general foreman before he left the building. According to court records, Gogos told the foreman he was heading to the hospital because “my health is not very good lately.” The foreman “immediately fired” Gogos.

Gogos sued the company, alleging disability bias. A lower court initially ruled that high blood pressure didn’t qualify as a disability, as it is a “transitory” condition. An appeals court recently disagreed, however, overturning the ruling in favor of Gogos.

In its decision, the appeals court explained that an impairment may qualify for ADA protection even if it is “transitory and minor” or episodic. In this case, the employee’s high blood pressure and recurrent blindness significantly impaired his circulatory function and eyesight. The case now heads to trial.

The court’s ruling that the plaintiff’s spikes in blood pressure and intermittent vision loss satisfied the definition of disability “wasn’t surprising,” says Ellen McLaughlin, a partner in the Chicago office of Seyfarth Shaw and past national chair of the firm’s labor and employment law department.

“The [ADA] Amendments Act made it clear that, if an impairment substantially limits a major life activity, an employee will be determined to be disabled,” says McLaughlin, “even if the impairment is transitory or minor.”

The difficulty for employers and HR, she says, “lies in determining how long an impairment must last to be considered a disability under the Amendments Act.”

HR must be “very cautious” in making judgments that impairments of short-term duration are not disabilities, says McLaughlin.

“Instead, [HR] should look to see how the case law is developing in this area. It’s always easier to have bright-line tests, but, unfortunately, for the time being this area is for the most part very grey.”

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