Labor Law: Defining an employee with a disability

A federal law passed in 2008 updating the Americans with Disabilities Act (ADA) is just now making its way to appellate courts, and a recent opinion from the Fourth Circuit Court of Appeals has employers taking notice.

Congress changed the ADA, in part, to redefine the definition of a disability. Many times, when an employee has a minor illness or injury, small employers don’t have specific legal obligations since the applicable law that kicks in with those types of situations is usually the FMLA. The FMLA only applies to employers with 50 or employees; and the employee also must have worked for the company at least a year (continuous) and worked 1,250 hours in the preceding 12 months have rights under the law.

However, the ADA applies to employers with only 15 or more employees. Small employers have relied heavily on the common sense concept of “disability” in believing that broken legs, hernias and other relatively short term medical conditions don’t apply. Indeed, if these types of minor illnesses and injuries implicate rights under the ADA, small employers (and large alike) will have many more legal requirements. For example, the ADA applies to all applicants and employees, not just those who have been with the organization for any length of time. The ADA requires reasonable accommodation, to include leave and reassignment. And, unlike the FMLA where the employee is entitled to only 12 weeks of leave, under the ADA, the rules are unclear, and leave can extend well beyond 12 weeks, or even beyond a year.

Last month, the Fourth Circuit Court of Appeals (which covers Virginia and surrounding states) analyzed the question of who has a disability under the amended law. The employee, Carl Summers, began working for the government contractor in Alexandria in July 2011. That October, he suffered an accident while exiting a commuter train on his way to work, fracturing one leg and tearing the meniscus tendon in his knee. He also fractured his right ankle and ruptured the quadriceps-patellar tendon in his right leg.

Doctors forbade him from putting weight on his left leg for six weeks and estimated he would not be able to walk “normally” for seven months “at the earliest.” The doctors said without surgery, bed rest, pain medication, and physical therapy, he would “likely” not have been able to walk for more than a year. While all this sounds very painful, these facts hardly suggest a permanent, long-term disability like we have been accustomed to consider.

Summers was not eligible for FMLA since he was only at the company for three months. After the accident, though, Summers sought reasonable accommodations including a “plan in which he would take short-term disability for a few weeks, then start working remotely part-time, and then increase his hours gradually until he was full-time again.”

While Summers received short-term disability benefits, the company did not discuss with him how he could return to work, nor did it suggest any alternative reasonable accommodation or engage in any interactive process with him. Instead, six weeks after the accident, the company terminated him “in order to place another analyst in his role” at the client site.

Summers sued the company claiming he was discriminated against due to his disability, and for the company’s failure to accommodate. The company filed a motion to dismiss on the pleadings, arguing that Summers did not have a disability, and thus was not entitled to pursue rights under the ADA. The federal district court agreed with the company, and stated, “Even though Summers had ‘suffered a very serious injury,’ this injury did not constitute a disability because it was temporary and expected to heal within a year.”

On appeal, the Fourth Circuit overruled the district court, acknowledging that it was the “first appellate court to apply the amendment’s expanded definition of a ‘disability.’” The court held that Summers has “unquestionably alleged a ‘disability’ under the [law] plausible to survive the [Motion to Dismiss].”

The court held that “an impairment is not categorically excluded from being a disability simply because it is temporary.” It reasoned that the EEOC has concluded that an impairment lasting less than six months can constitute a disability. Acknowledging that short-term impairments qualify as disabilities only if they are sufficiently severe, the court held “it seems clear that the serious impairment alleged by Summers is severe enough to qualify,” especially in light of the EEOC’s conclusion that a person who cannot lift more than 20 pounds for “several months” is sufficiently impaired to be disabled under the law.”

This decision, out of one of the most conservative jurisdictions in the country, demonstrates that employers cannot assume that a short-term or temporary impairment doesn’t qualify under the ADA. Employers need to evaluate every situation on a case by case basis.

Soruce: http://www.timesdispatch.com/workitrichmond/learning-center/labor-law-defining-an-employee-with-a-disability/article_d4193890-a2fd-11e3-8bff-001a4bcf6878.html Karen Mitchael

                                                                                                                           –

As a part of management’s consideration of reasonable accommodation or reasonable modification requests received from our valued residents (and/or applicants), sometimes we need to determine if the resident is “disabled” or has a “disability” as defined under applicable law.   While many of the fair housing laws use the term “handicap,” cases interpreting our fair housing laws make clear that the terms “handicap” and “disability” have the same meaning in this circumstance.  As currently interpreted, individuals with handicaps or persons with disabilities include individuals:  (a) with a physical or mental impairment that substantially limits one or more major life activities; (b) who are regarded as having such an impairment; and (c) who have a record of such an impairment.  There are many conditions that can qualify as “disabled” under the law.

Nevertheless, the following individuals are not included in the fair housing definition of “disability” or “handicap”:  (a) persons currently engaging in the illegal use of a controlled substance; (b) persons whose tenancy would constitute a “direct threat” to the health or safety of other individuals or whose tenancy would cause substantial physical damage to the property of others; (c) persons convicted of the illegal manufacture or distribution of a controlled substance; and/or (d) juvenile and sex offenders.

When required, management will obtain only so much information as may be necessary to make an appropriate determination — such as to respond to a reasonable accommodation or modification request.  Make no mistake, we are not attempting to unnecessarily insert ourselves into your medical history.  To illustrate, if someone uses a wheelchair, it is unlikely that management will need further documentation about a request for a designated parking spot.  On the other hand, for someone with a disability that is not obvious, we only seek confirmation that the resident meets the definition under applicable law so we can evaluate an accommodation or modification request.  Make sense?

Source: http://www.mondaq.com/unitedstates/x/296460/real+estate/Here+is+How+The+Fair+Housing+Laws+Define+DisabilityJust A Thought

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