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THIS WEEK'S E-TIP: ADA: Tricky Definitions
October 17, 2006, Volume 8, No. 42
Published by Personnel Policy Service, Inc.
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THIS WEEK'S E-TIP: ADA: Tricky Definitions

The ADA protects not only individuals with actual disabilities, but also
those people who have a "record of" or are "regarded as" disabled.
However, the extent of your legal obligations to these applicants and
employees is unclear.
 
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THIS WEEK'S E-TIP: ADA: Tricky Definitions

If you are like most employers, you likely are familiar with your
obligations under the Americans with Disabilities Act (ADA) not to
discriminate and to accommodate disabled individuals. But, are you
aware that the ADA also protects applicants and employees who are not
actually disabled but who have a "record of" a disability or are "regarded
as" having disabilities?

From a practical standpoint, this coverage means that you cannot
discriminate against someone who has a medical condition that you
mistakenly think is a disability, or who had a disability but no longer is
substantially limited by it. However the courts are divided regarding
whether you have to accommodate their medical conditions even when
they are not currently disabled by them.

A Record of Disability

The ADA statute defines a disability as: (1) a physical or mental
impairment which substantially limits a major life activity; (2) a record of
having a substantially limiting impairment; or (3) being regarded as
having an impairment that substantially limits a major life activity.

An individual is considered to have a "record of" impairment if the person
has a history of, or has been misclassified as having, a mental or
physical impairment that substantially limits a major life activity. So, for
example, a former cancer patient who is currently in remission is
protected as disabled even though the cancer does not currently
substantially limit a major life activity.

Who is Regarded As Disabled

According to the ADA regulations, an individual is "regarded as" having a
disability if the person:
  1. Has a physical or mental impairment that does not substantially
    limit major life activities but is treated by an employer as if the
    impairment does substantially limit activities;
  2. Has a physical or mental impairment that substantially limits
    major life activities only as a result of the attitudes of others toward the
    impairment; or
  3. Does not have an impairment as described in (1) and (2), above,
    but is treated by an employer as having a substantially limiting
    impairment.

Take as an example an employee with controlled high blood pressure
that is not substantially limiting. If you reassign the employee to less
strenuous work because of unsubstantiated fears the employee will have
a heart attack, you would be regarding the individual as disabled and
improperly discriminating against him.

 
 
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Accommodation Obligation is Unclear

One question that comes up is whether individuals who are regarded as
disabled, or who have a record of a disability, are entitled to an ADA
accommodation since they do not actually have substantially limiting
impairments. Neither the ADA statute nor its implementing regulations
specifically addresses accommodations for these individuals. However,
the ADA does require employers to accommodate all qualified disabled
individuals, and the definition of who is disabled (explained above)
includes those individuals who are regarded as disabled or who have a
record of substantially limiting conditions.

Courts disagree about this issue. The Fifth, Sixth, Eighth, and Ninth
Circuits have held that this group is not entitled to accommodation. As
an example, in Kaplan v. City of N. Las Vegas, 323 F.3d 1226 (9th Cir.),
cert. denied, 540 U.S. 1049 (2003), the city did not have to
accommodate an employee that it may have regarded as disabled
because the employee did not actually have an ADA disability. The court
said that the language of the ADA supports the notion that "regarded as"
workers are entitled to accommodation but that a literal interpretation
would lead to a "perverse and troubling result."

In contrast, the Third, Tenth, and Eleventh Circuits require an
accommodation for "regarded as" disabilities. Thus, in Williams v. Phila.
Hous. Auth. Police Dep't, 380 F.3d 751 (3d Cir. 2004), the Third Circuit
Court of Appeals (which covers Pennsylvania, New Jersey, Delaware,
and the Virgin Islands) disagreed with the majority and ruled that an
employee regarded as having an impairment that substantially limits a
major life activity could be entitled to an accommodation. The court
found that the statutory text of the ADA does not "distinguish between
actually disabled and 'regarded as' individuals in requiring
accommodation," and so allowed an employee to pursue a claim that he
was entitled to an accommodation even though he was not actually
disabled.

Because of the split between the circuits and the actual language of the
ADA, most experts agree that you should consult legal counsel before
denying an accommodation to individuals who are regarded as disabled
or who have a record of a disability.
 
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Stereotypes Dangerous in ADA Analysis

The ADA's protection of individuals who do not currently have
substantially limiting disabilities, but who used to be disabled or who are
regarded as being disabled, may seem like undue protection, but it
makes sense. These individuals often are subjected to discrimination
just because employers are concerned that they will become sick again
or will be unable to perform the job in the future. While some of these
concerns may be justified, many are based on outdated medical
information about how certain diseases progress. Twenty years ago, a
diagnosis of cancer or AIDS was viewed as a death sentence. Today,
many people live long and productive lives after treatment for these
conditions. Similarly, diseases like rheumatoid arthritis that once were
considered debilitating now can be managed practically symptom-free.

Still, stereotypes exist, and the ADA tries to combat them by prohibiting
the making of decisions based on improper assumptions about how a
disease affects an employee or about a person's past medical history.
You can ensure proper treatment of these individuals, and thus protect
against liability, by taking some simple steps, including:
  1. Do not ask for medical information, except when you have a job-
    related reason for needing the information. Even though the ADA allows
    you to make virtually unlimited medical inquiries at the post-offer stage,
    you should still limit your questioning. (Medical inquiries of current
    employees, however, must be job-related and consistent with business
    necessity.) This limitation reduces the chances that applicants and
    employees will assume you are basing any adverse decisions on
    medical information you have collected.
  2. Make employment decisions based on job-related criteria.
    Consider whether the person has the requisite skills, knowledge, and
    experience to perform the job. Medical information should be considered
    only if a condition potentially affects the individual's ability to perform the
    job, or if an accommodation is requested.
  3. Keep any medical information collected confidential. It generally
    should not be available to managers making hiring and other
    employment decisions except, as noted above, if a medical condition
    affects the person's performance or an accommodation is needed.
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Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find more information about ADA protections for individuals with
a record of or regarded as disabled in Serious Diseases, Chapter 203A,
notes 7 and 13.

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