Contributed by Terry Fox
Recognized disabilities protected under the ADA have expanded, following the Congressional Amendments to the ADA of 2008 (eff. Jan. 1, 2009). These expanded protections now include more disabilities “of the mind,” in addition to more concrete physical infirmities. “Disability” now includes limitations on major life activities of cognitive and mental processes. Essentially, the EEOC has extended “disability” to the life activity of “thinking,” as evidenced by its revised compliance manual and regulations.
This expansion presents considerable concern for the employer. Confirming and understanding a mental or cognitive disability can be a difficult process to navigate, and accommodating such a disability can require some level of sophistication and, in some cases, a little creativity. It is clear that where there is a professional diagnosis of a mental condition, particularly where the DSM-IV diagnostic codes are utilized, the employer can generally accept the professional diagnosis as substantiation of a disability. Of more concern is a situation where the family or nurse practitioner provides a diagnosis of Attention Deficit Disorder or a similar problem or a notice of disability, for example in Carlson v Carroll University (involving student under Title II of ADA). If the diagnosis is unclear or non-existent, the employer may refer the employee to a qualified medical professional for review and assessment. However, the medical review-assessment must be job-related and consistent with business necessity. All records concerning the employee’s condition must be stored in a separate, confidential file.
The starting point for any employer is to focus on the claimed disability. An ADA disability requires either a physical and/or mental impairment, coupled with a substantial limitation of one or more major life activities caused by said impairment. For example, fear, which is a cognitive or thinking process, itself does not implicate a “disability.” Late night employees at a Florida Sonic Drive-In were present for one or more armed robberies, including an instance where a gun was put to the head of an employee and she was told she’d be killed. All employees articulated fear of working that shift and asked for a change to daytime work. Those employees were terminated and they sued under the ADA, claiming both to be disabled and for being treated as disabled by their employer. Wallner v. MHV Sonics, Inc. Fear of future robbery was found to be transitory and minor, and the employer was not liable under the “regarded as disabled” prong where the condition was transitory and minor. Similarly, fear of cancer and fear of snakes, without more, do not qualify as “disabilities.” Fear of large social settings is not a disability because it is not atypical of the general populace. Bialko v. Quaker Oats Co.
In the next installment, we’ll address specific issues regarding accommodation. . . .