Don't Get Caught Off-Guard by New ADA Rules

Picture this: Your employee, Andy, comes into your office one morning, slumps down in the guest chair, and spills this confession: "I have really been feeling depressed. I need some time off."

What do you do? If you just let Andy go home for awhile, you can't really be sure that you haven't been bamboozled. How do you know he really feels depressed? And even if Andy's a proven hard worker rather than a slacker, maybe he is just mistaken about the degree of his impairment.

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

Following the Law

Doing the right thing by Andy—and by other employees with similar problems—has become a lot tougher under the ADA, which applies to employers with 15 or more workers, though many states are more inclusive. Two recent legal events have increased the risk to employers of making errors in disability law. The first is the amendment to the ADA that took effect in 2009, expanding the meaning of the term "disability" to cover more physical and mental conditions. The second is a set of new guidelines from the Equal Employment Opportunity Commission (EEOC), which are scheduled to go into effect this year.

The ADA amendment means more people than ever are protected against disability discrimination—intentional or otherwise. "One of the most common errors made by employers is assuming only major disabling conditions such as blindness 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 a given employee is truly disabled to whether the employer discriminated," McDonald adds. "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 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," Nobile says.

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

Avenues of Pursuit

Employees have many avenues to pursue legal action. At the federal level, they can file claims with the EEOC, which enforces the ADA. If the EEOC determines the employer violated the law, some attempt will be made to settle through an amicable resolution. However, at the same time the EEOC renders its determination regarding whether there is reasonable cause to believe a violation of the ADA has occurred, the EEOC will hand the employee a "right to sue" notice.

The employee always has a right to sue in federal district court alleging the same 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.

Working it Out

The bottom line is that the burden of proof has shifted to the employer to demonstrate that making an accommodation for a disability or condition 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," Nobile says. 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 story 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," Nobile says. "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," McDonald says. "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," McDonald says. "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, the nation's largest employment law firm representing 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.

For more information on disability discrimination, visit the EEOC's Web site at www.eeoc.gov, and click on "Employers."