Law: Things employers must remember under new disability rules

Employers have been under the new Americans with Disabilities Act Amendments Act (ADAAA) for several years.

The following six tips are offered as reminders and advice to employers in light of the new regulations:

• Update an inflexible leave policy.  Many employers still have some version of the “no fault” or “fixed leave” program. Under the law, such programs may not pass muster and employers may still need to provide additional leave as a reasonable accommodation.
• The law is broadly interpreted to shift the focus away from “disability” and to “reasonable accommodation.”  Congress stated that the Act's primary object is whether employers have complied with their obligations, not whether an impairment is a disability.  Courts also can no longer consider the positive effects of mitigating measures when determining whether an employee is disabled (i.e., glasses to correct vision).  Likewise, episodic impairments such as diabetes, depression, post-traumatic stress disorder, obsessive compulsive behavior and epilepsy may be covered disabilities.
• While more employees may be considered “disabled” under the new law, they still must be qualified. Remember: the  burden remains on the employee to demonstrate that s/he is “qualified” with or without a reasonable accommodation.
• The new law did not affect the employer's right to continue to hire or retain the most qualified person to do the job, and to discipline employees for performance issues.   Not every impairment or ailment constitutes a disability.  Minor and transitory conditions are still excluded from the “regarded as” definition of disability.    Things like the flu, sprained joints or broken bones may not be covered.   An employer that fires someone because of an alleged medical condition has not “regarded” an employee as disabled if the medical condition is “minor and transitory”; i.e., a duration of six months or less.
• Remember all the other leave laws that may impact your day-to-day operations.   There may be other types of leave available to the employee, such as the Family and Medical Leave Act (FMLA) or worker's compensation.  Ask yourself:  Does this particular employee's issue involve the ADA, FMLA, worker's compensation, or any other leave statute?
• Voluntary wellness programs are still allowed. The ADA merely limits when an employer may obtain or use medical information.  However, an employer can still implement a voluntary wellness program and require certain health outcomes in order to earn rewards, as long as it provides reasonable accommodations to employees unable to meet the outcomes due to a disability.

While many more employees are now covered under the law and are able to claim a disability, an employer continues to have many common sense defenses available.