HMMM – Who Isn’t Disabled Now?

Employers Obligations Continue to Grow

By Kim Silvers, SPHR-CA


The court cases, regulations and legislation just keep coming – mostly in favor of employees who have or may be regarded as having a disability.  Employers should take heed that any adverse action (demotion, reassignment, termination) related to an employee’s disability may be grounds for a discrimination lawsuit.

Last week, the Equal Employment Opportunity Commission’s (EEOC) final regulations interpreting the Americans with Disabilities Act Amendments Act (ADAAA) became effective.  Although the California Fair Employment and Housing Act (FEHA) definition of a “disability” has always been more liberal than the federal ADA, the feds are catching up.  Under the ADAAA things become more risky for employers who take action without thoroughly considering and discussing with a disabled employee the impact and options of accommodating his/her disability.  Here are a few of the highlights noted from the ADAAA:

  • Employers are held accountable to look for accommodations rather than question whether someone is disabled (this applies to applicants as well as employees).
  • Individuals are considered disabled regardless of the medication, prosthesis, etc. they may use to mitigate the disability.
  • The length of the disabled period is no longer a consideration.  If the employee is “substantially limited” in a major life function for any period he/she may be considered disabled. (Keep in mind that the California FEHA defines a disability as “limiting a major life function” (no “substantial” limitation required in the Golden State) and has a lower threshold to be classified as a disability.)
  • The EEOC has now outlined certain conditions that will, in virtually all cases, be considered a disability, including autism, cancer, diabetes, multiple sclerosis , major depressive disorder, bipolar disorder, post traumatic stress disorder, obsessive compulsive disorder, and HIV infection.

The bottom line is that the EEOC has broadened the scope of who is considered disabled and the requirement to ensure the disabled are considered for reasonable accommodation.  As such, employers must be cautious about dismissing an applicant’s or employee’s request for accommodation because the employer believes the individual is not actually disabled.  The advice we’re seeing from legal counsel is to not spend a lot of time questioning if the individual’s ailment is officially a “disability”, but begin the interactive process to determine if the employer can meet the accommodation request.


What’s the interactive Process?

In addition, we are continuing to see California employers charged with failure to engage in the “interactive process” with applicants and employees who are/may be disabled.   Recently, a California court ruled that an employee was illegally terminated after his workers’ compensation injury was determined to b permanent and stationary, and awarded him over $1.5 million.  Although the employee had been placed in a light duty position during the injury assessment, he was terminated when the employer learned that he was considered 100% disabled by the workers’ compensation insurance carrier. (For the full case see Cuiellette v. City of Los Angeles, 123 Cal.Rptr. 3d 562)

 The ADA and FEHA require that all employers engage in the interactive process with the employee to determine if a reasonable accommodation may be made for a disabled employee or applicant. However, there are not clear steps delineated when the interactive process begins, how long it is to last and when to walk away.  Many of our clients are frustrated by employees who fail to meet the work standards and point to a disability as the cause.

 Silvers HR is slow to advise our clients to end the disabled employee’s employment  without significant and documented interaction with the employee and his/her health care provider about the accommodations needed and feasible.  It does not cost an employer any significant funds to leave an employee on an inactive (unpaid) status and we encourage many to do so pending the interactive process evaluation.   If the employer and employee have exhausted the interactive process   and cannot determine a reasonable accommodation without undue hardship, then the employer does not have to offer the accommodation requested.  If this is the case, we encourage employers to speak with legal counsel about the process before terminating the employee.

The interactive process, although not specified as a set number of steps or communication attempts, includes the following:  Determining the essential functions of the employee’s  current job, an evaluation of the accommodation requested by the employee,  requesting a fitness for duty evaluation where needed,  communication with the employee regarding the accommodation he has requested and how he may complete the essential functions, a review of interim light duty functions the employee may perform, a determination of the accommodation and if it can be accommodated or if it is an undue hardship.  At each step it is essential that the employer document the communication with the employee and/or his physician.  The employee’s failure to respond to the employer’s inquiries should also be documented.

Avoid automatic termination at the end of a medical leave

If your company has a policy that states employees will automatically be terminated after X months of a medical leave, we encourage you to reconsider.  Every case is different and the automatic termination has landed some employers in court to defend how they have taken careful steps to show they’ve engaged in the interactive process.

We often suggest to employers that although they may fill the position an employee has temporarily vacated due to a disability, it does not mean that they have to terminate the disabled employee. Of course, if there are protected leave laws that apply (for example, FMLA, CFRA, or Pregnancy Disability Leave) then the employer must hold the job or offer a similar job with equivalent pay and benefits until the expiration of the employee’s protected leave period.  If the employee requests leave beyond the protected leave period, the employer need not hold the employee’s position open, but can place the employee on an inactive(unpaid)  work status pending release.  This is far less risky than terminating the employee because the 12 week period is expired although the employee needs additional medical leave.

Don’t make these decisions in a vacuum

Medical related issues, leaves of absence, the interactive process – these are all complicated matters for an employer.  We encourage you to contact knowledgeable HR experts or legal counsel as these issues arise. 

 We will hold our leave of absence workshop on September 22, 2011 in Sacramento. This workshop is always a sellout and we encourage employers to attend.  We will review  recent court cases as well as the leaves of absence requirements and updates to the ADAAA.  Sue Ann Van Dermyden, a Sacramento employment attorney and popular speaker, will be presenting with the Silvers HR consulting team.  It’s about as much fun as anyone can have hashing over leave of absence tips!

In the meantime, we encourage you to call us or legal counsel when they have a medical leave of absence issue.  Having a third party to think out loud with may save time and funds down the road.  The Silvers HR library holds extensive leave of absence tools and forms for our clients as well.


Copyright 2011 Silvers HR, LLC