How does disability in employment work?
I find there is a lot of misunderstanding in what discrimination in disability means and how it applies to El Paso, Texas and Texas employees. In this article I will cover the American with Disabilities Act (ADA) and its amendments (ADAA) and the general rules of discrimination in employment.
The ADA was a statute passed to protect disabled persons in the workforce. Unfortunately, when the ADA was passed the Federal Courts went out their way to make the statute ineffective by making it almost impossible for most persons to be defined as disabled. Fortunately, the ADA was amended and these amendments drastically changed the statute to make it effective. (Unfortunately there are still Judges and Arbitrators who can’t seem to understand how the ADAA changed the prior law and we still see some of them actually citing the prior law as authority on the definitions of disability, but we believe that is changing as the law is better understood).
In this article I will not go into the details of what is a disability, but suffice it to say that many physical and mental problems that employees have are disabilities. In fact, the ADAA requires that the definition of disability be interpreted in terms of broad coverage. In other words it should be liberally and broadly construed. And congress told the courts and arbitrators that the analysis of disability should not require extensive analysis. Things like back and knee injuries, cancer and diabetes as well as many other illnesses and injuries should be covered as a disability under the ADAA. The ADAA covers both work injuries and non work injuries as well as many illnesses (both physical and mental).
Once it is determined that you have a disability, what type of protection do you have? There are two types of protections under the ADA and its amendments (ADAA).
The first is being regarded as having an impairment or disability. This would occur for example if you had some type of disease (ex Such as HIV or Hepatitis C or Cancer) or injury (ex hurt back or knee) or impairment not effecting their job (such as person with a desk job who is in a wheel chair, or a person blind in one eye). If your employer regards you as a disabled or impaired person despite the fact that you can still do the essential functions of job then you will have a claim for “regarded as” disability. So for example if your employer found out that you had Hepatitis C and decided to fire you for this reason or demote you or not promote you would would have a claim for “regarded as” disability. If you had a serious back injury and when you came back to work your employer starts to “write you up ” because he regards you as a broken person (and he worries that you will get injured at work and make a claim against the company or its workers’ compensation insurance) then you may be “regarded as” disabled and have a claim under the ADAA. Any time you can do all the essential functions of your job but your employer regards you as injured, broken, mentally ill, or disabled or subject to another injury, then you may have a claim under the ADAA. You must be able to do the essential functions of your job even if you are regarded as disabled. I have seen many employers that have lifting requirements (ex 50 pounds) and they apply it to everyone in one department and then if an employee can’t lift 50 pounds they terminate the employee. They do this in spite of the fact that the employee in their particular job never had to lift 50 pounds. In these cases I argue that the employee is being regarded as disabled because they can do the essential functions of their job (without accommodation) despite the fact they cannot lift 50 pounds (because of a back injury or other disability). The employer can’t force a lifting requirement on you that you do not, in reality, have to meet.
The second type of of ADAA claim is the one where you you can do your job, but you need a reasonable accommodation by your employer to be able to do the essential functions of your job. As you can imagine there has been a lot of litigation on what is a reasonable accommodation and what is an essential function of the job. Examples of this type of case would be a typist who gets carpal tunnel syndrome (impairment to the wrist caused by repetitive typing). A reasonable accommodation might be no continuous typing for more than one hour without a few minutes of break. Another example would be allowing a change in work shifts to accommodate doctor visits. Accommodations are based on the facts and circumstances of each disability. It is usually your doctor that will suggest the accommodation needed and then the issue will be is the accommodation reasonable? There is a lot of litigation between employees and employers over what is “a reasonable accommodation”. Employers will usually try and claim that the accommodation is too costly or will hurt productivity too much and the employee will argue that it is reasonable and a small cost to make such an accommodation. It is important to note that it is the employees burden to ask for a reasonable accommodation. This is known as the “interactive process” where you make a request with your employer for a reasonable accommodation and then you and your employer will work together to come to an agreement. At least this is how it is supposed to work, but unfortunately my experience as an employment lawyer in El Paso, Texas is that employers spend much more time in trying to explain why they cannot accommodate you than they do actually trying to find a way to reasonably accommodate you for your disability. Also many employers will say that they will accommodate you, but in reality they are unhappy about making the reasonable accommodation and therefore begin looking for ways to discipline and then terminate the disabled worker who was granted the reasonable accommodation.
It is important that you see a board certified employment lawyer who specializes in disability law and wrongful termination law if you feel that you are being discriminated against in employment based on an injury (work injury or otherwise) or illness. Try and find a Texas board certified employment lawyer in your city to help you navigate this complex area of the law.