Unlike the standards that regulate state and local govern- ment programs, services and activities, or public accommodations and commercial facilities (Title II and Title III, respectively), the employment provisions of ADA’s Title I are less “clear cut” and definitive.
For the facility manager who is responsible for integrating the employee with the work environment, this issue is com- pounded by three different, but interrelated, factors.
First, the preponderance of disability-related discrimination complaints filed with the Equal Employment Opportunity Com- mission (EEOC), which enforces Title I of the ADA, are work-in- jury related.
Second, confusion surrounds an injured worker’s “status” as an individual with a disability. While the ADA does not specifi- cally identify an injured worker as a person with a disability, it does not exclude an injured worker from its definition of a person with a disability. The key to determining the injured worker’s “status” rests with the worker, meeting the ADA’s definitional test. If the injured worker does meet ADA criteria, that individual assumes the same rights as other qualified individuals under the ADA.
Third, the impact of workers’ compensation upon the injured worker adds to the complexity, especially in terms of benefits entitlement, fitness to return to work with or without reasonable accommodation, and the employer’s ability/inability to reason- ably accommodate the injured worker with a disability.
The ADA’s Definition of Disability
The ADA defines a person with a disability as an individual who:
• Has a physical or mental impairment that substantially limits one or more major life activities.
• Has a “record” of such an impairment. • Is regarded as having such an impairment. • Is associated with an individual with a disability.
Physical and Mental Impairments
A physical impairment is defined as any physiological disor- der or condition, cosmetic disfigurement or anatomical loss affect- ing one or more of the following body systems: neurological, respiratory (including speech organs), cardiovascular, reproduc- tive, digestive, genital-urinary, hemic and lymphatic, skin and endocrine.
A mental impairment is defined as any mental or physiologi- cal disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
The ADA does not provide a comprehensive list of physical and mental impairments. The number and variety of impairments preclude it from doing so. The impairment itself, however, must either be either physiological or mental. Simple physical character- istics such as height/weight within a normal range, left handed- ness, hair/eye color, etc., are not impairments.
Determination of impairment is made without regard to any kind of medication or device that an individual may be required to take or use. A person required to use a vasodilator to control asthmatic attacks, for example, is considered to have an impair- ment, even if the use of the vasodilator completely prevents at- tacks.
Persons who have contracted contagious diseases such as tu- berculosis, or Human Immunodeficiency Virus (HIV), are consid- ered to have an impairment under the ADA.
While the ADA recognizes drug addiction as an impairment, employees (and applicants) are not protected from any personnel actions based on current use of illegal drugs. Individuals who are no longer illegally using drugs and who have been successfully rehabilitated, or are in the process of completing a rehabilitation program, however, are protected under the Act.
Stress and depression may be considered impairments under EEOC guidelines. Determination is based upon documented physiological or mental assessments.
Major Life Activities
The impairment must substantially limit one or more major life activities for the individual to be considered as having a dis- ability under the ADA.
Major life activities are defined as those basic activities that the average person in the general population can perform with little or no difficulty. EEOC Guidelines list the following as repre- sentative of major life activities:
walking speaking breathing
seeing hearing sitting
standing reaching lifting
reading manual tasks working
caring for one’s self Substantially Limiting
Under the ADA, an impairment is a disability if it “substan- tially limits” one or more major life activities. There are three fac- tors that are used to determine if an impairment substantially limits a major life activity:
• The nature and severity of the impairment.
• The duration/expected duration of the impairment.
• The long-term or permanent impact/or expected long-term or permanent impact of the impairment.
It is important to consider these, because it is the effect of the impairment that determines if one or more of a person’s major life activities has been substantially limited. The same holds true for the individual who has multiple impairments.
While no one impairment may substantially limit a major life activity, the cumulative effect of those impairments may limit a major life activity. When and if this occurs, the individual does have a disability.
Has A “Record” of Such an Impairment
Under the ADA, people who have a history of disability are protected, whether or not they are currently substantially limited in a major life activity. People who have either been wrongly clas- sified or misdiagnosed as having a disability are also protected under the ADA.
Is Regarded as Having an Impairment
Perception of impairment is a significant factor. If a person is perceived to have an impairment that substantially limits a major life activity, then that person is protected under the ADA.
Temporary Impairments
The duration of an impairment is not the only factor that determines substantial limitations.
The extent of the impairment, as well as the impact, or effect of the impairment are factors that must be considered. A tempo- rary, non-chronic impairment that does not last for any given length of time, and that does not have a long-term impact upon the individual, is not considered a disability for the most part.
Qualified Individuals with Disabilities
For an individual to be protected by the ADA, the individual must be qualified as such. In other words, a qualified individual with a disability is a person who meets the prerequisite skills, experience, educational background and all other requirements of the job, and who can perform the essential functions of the job, with or without reasonable accommodation.
If the person meets the necessary prerequisites of the job, then the person is considered “otherwise qualified.”
In this case, the hiring manager must determine if that person can perform the essential functions of the job with or without reasonable accommodations.
In addition to their own evaluation, or judgment as to whether or not the person can perform the essential functions of the job, the hiring manager must consider:
• The job description (job descriptions must accurately reflect the functions of the job the employee will be performing). • The actual amount of time the person will spend performing
the functions of the job.
• Any consequences of not requiring the person to perform the functions of the job.
• The work experience of people who have performed the job in the past, as well as persons who are currently doing the job.
• The nature of the work operation.
• Collective bargaining agreements (if applicable).
If the individual cannot perform the essential function of the job, with or without reasonable accommodation then that person is not considered qualified by the ADA.
Reasonable Accommodation
The ADA requires that employers reasonably accommodate current employees and job applicants with disabilities. The gen- eral rule states than an employer cannot select a qualified person without a disability over an equally qualified person with a dis- ability only because the employee/applicant with a disability will require accommodation.
Some examples of accommodation include making existing facilities accessible to people with disabilities, job restructuring, equipment and/or worksite modification, provision of assistance aids (e.g., Braille materials, etc.) and job reassignment if the person can no longer perform his original job duties.
Because reasonable accommodation must be made on an in- dividual basis, the EEOC holds that reasonable accommodation must be jointly determined by employer and employee (or appli- cant). This is accomplished by consulting with the qualified em- ployee or applicant with a disability to identify limitations, as well as appropriate agencies, rehabilitation organizations and medical care providers to determine potential accommodations. The ac- commodation appropriate for the person to perform the essential functions of the job is then chosen.
Note that while the accommodation must be reasonable, it does not need to be the best. If a less expensive assistance aid (e.g., manually-operated wheelchair) will permit the person to perform the essential job functions, for example, the employer does not need to provide a better or more expensive aid (e.g., motorized wheelchair). The employee (or applicant) may, however, choose a different accommodation if he is willing to provide it.