Overview: The EEOC is cracking down on employee discrimination against individuals with disabilities (a more preferred term than disabled employees) under the Americans with Disabilities Act (ADA). An individual is considered disabled under the ADA if: (i) they have a physical or mental impairment that substantially limits one or more of their major life activities; or (ii) a record of such an impairment; or (iii) are regarded as having such an impairment. Employers need to apply this definition broadly and are wise to focus more on the interactive process and the duty to accommodate the individual. In addition, because many states and municipalities have laws that define what constitutes a disability, employers should check their state/local law to ensure full compliance.
Employers should also ensure they have the required ADA poster and supplement in locations that can be easily seen by applicants and employees and that their policies, programs and practices follow the purpose and language of the amended ADA.
Trends: With the passage of the Americans with Disabilities Amendments Act (ADAAA), many more individuals fall within the ADA's definition of disability. The growing definition of disability is another reason why an employee who has a disability wants to be considered an individual with a disability, as opposed to being a disabled employee. Therefore, employer focus on the interactive process and reasonably accommodating employees - and not whether the individual is disabled - is increasingly paramount.
"No fault" leave or attendance policies under which employees are automatically terminated after being on leave for a specific period of time can be considered a violation of the ADA if the policy or practice fails to incorporate an interactive process to assess whether additional, definite leave may be a reasonable accommodation under the ADA. The EEOC has targeted several employers - to the tune of millions of dollars - challenging such no-fault leave policies.
Author: Melissa S. Burdorf, JD, Legal Editor
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