Tuesday, February 26, 2013

Disability Does Not Mean Job Security

In 2010, the Americans with Disabilities Act (ADA) amended their definition of "disability." May 24, 2011 those amendments went in to effect. The Equal Employment Opportunity Commission has a fact sheet on the final regulations which can be access by clicking here.  According to the Fact Sheet, Congress has "made it easier for [individuals] seeking protection under the ADA to establish that he or she has a disability." An individual can qualify as "disabled" by meeting one of three prongs: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record (or past history) of such an impairment; or (3) being regarded as having a disability.
Despite this expansion of the definition, employees may still be fired for not being able to perform their job functions if accommodations are unavailable. The ADA Amendments Act (ADAAA) clearly states that an employer need not provide an accommodation if only the "regarded as" prong is met. An employee can be entitled to accommodations if they fall under both the first prong and the second prong, or "regarded as" coupled with one or both of the other two prongs. Being "regarded as" disabled alone will not entitle you for a reasonable accommodation by your employer.
The ADA is not a safeguard from termination for disabled employees when they cannot perform their tasks. That is the stance of the appeals court in Lawler v. Montblanc North America, L.L.C.  [which can be accessed by clicking here.] In that case decided last month, the employee (Lawler) took an extended leave of absence after being diagnosed with arthritis and sustaining injuries stemming from her condition. Her employer, Montblanc, contacted her doctor and asked if there were any accommodations they could provide so that she could return to performing her duties. Her doctor provided no accommodations for the employer. Since Lawler could not perform the necessary tasks while disabled, and her doctor offered no reasonable accommodations for her to return, her employment was terminated. The employer prevailed in this case because Lawler failed to prove that she could competently perform the duties necessary to hold her position, with or without any reasonable accommodation. Had Lawler been able to work, perhaps with some type of accommodation recommended by her doctor, then it may have been a discriminatory termination based on her disability.
Be aware of your protection under the ADAAA and the EEOC Regulations by clicking here.

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