Tag Archives: Disability

Happy Memorial Day! A Quick Guide for Affirmative Action Programs for Hiring Veterans with Disabilities

Contributed By Allison P. Sues, May 26, 2021

With the upcoming Memorial Day holiday offering an opportunity to acknowledge and appreciate the sacrifice made by military families, it seemed a fitting time to revisit the legal nuances of providing preference in hiring veterans with disabilities. Veterans report high instances of service-connected disabilities, including blindness, deafness, missing limbs, major depressive disorder, and post-traumatic stress disorder. Some laws require employers to provide preference to disabled veterans. Some employers voluntarily create affirmative action programs for veterans with disabilities. Here is what employers should know. 

Can an employer give preference in hiring to a veteran with a disability?

Yes. There is no law that prevents an employer from voluntarily creating a program that gives preference in hiring to qualified veterans with disabilities. Moreover, there are various laws in place that may require an employer to provide affirmative action to veterans. For example, the Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA) requires all business with a federal contract or subcontract exceeding $100,000 to take efforts to employ and advance veterans with disabilities. The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to make reasonable efforts and accommodations to return veterans with service-connected disabilities to their position prior to military service or to help qualify the veteran for a job of equivalent seniority, status, and pay. 

May an employer ask if an applicant is a disabled veteran? 

Yes. While the Americans with Disabilities Act (ADA) generally prohibits employers from making medical inquiries, they may do so for affirmative action purposes. Therefore, an employer may ask applicants to voluntarily self-identify as a veteran with a disability if it is collecting this information to undertake affirmative action required by a veterans’ preference law, or to provide benefits to these applicants through the employers’ own voluntary program.   

If an employer requests that applicants self-identify as a veteran with a disability, the request must clearly state that this information is intended for use solely in connection with its legal affirmative action obligations, or voluntary affirmative action efforts. Employers should also confirm with the applicants that the information will be kept confidential, and that the applicant’s decision to disclose this information is completely voluntary. Keep all records of disability-related information in a separate, confidential file.

What are some steps that employers can take to attract, recruit, and hire veterans with disabilities?

  • Job postings and advertisements may encourage veterans with disabilities to apply and should explicitly state that the organization is an equal opportunity employer.
  • Employers may send job opening information to organizations that job-train veterans and assist veterans with finding employment.
  • Employers may attend job fairs that connect employers with qualified veterans searching for work.
  • Employers should review all language used in job postings to make sure that nothing would dissuade a veteran with a disability from applying. Job postings should not include language calling for “excellent health” or listing required physical abilities if an individual with a disability would be able to accomplish the job function differently through an accommodation.
  • Employers must provide accommodations to veterans with disabilities in the application process where necessary. For example, employers should provide applications and other written materials in an accessible format, whether that be in large print, Braille, or electronically. Employers should also conduct interviews in accessible locations. 

Failure to Engage in Ongoing, Individualized Interactive Process Could Cost Millions

Contributed by Noah A. Frank

A bit of strategic planning could have saved an employer from a federal jury’s $5.5 million verdict for a mechanic who claimed his accommodations were discontinued after eight (8) years. Labor LawA heavy equipment mechanical repairman  was subject to medical restrictions for lifting, climbing, and postural limitations. Despite these restrictions, he performed the essential functions of the job with accommodations. This all changed on December 28, 2011 when he returned to work from an unrelated gallbladder surgery; his new supervisor noted his arthritis-related work restrictions and allegedly told him that no one was allowed to work in the department with limitations. All accommodations ceased.

The jury found that he was a qualified individual with a disability, who should have been provided with an accommodation, and was terminated because of his disability. Further, his employer failed to prove either that an accommodation would not be possible, or that he was a threat to his own or others’ safety.

What Should Have Happened?

Administrative agencies (like the EEOC and state/local counterparts) and courts expect employers to engage in the Interactive Process for individuals with known/disclosed disabilities to determine whether:

  • The employer can provide an accommodation to remove barriers to enable the employee to perform the essential (non-marginal) functions of the job, and
  • That the accommodation is reasonable.

If neither of those is true, the individual may not be a qualified individual with a disability, and therefore not protected under relevant civil rights laws.

In this situation, it seems that the employer’s biggest mistake was suddenly deciding that years-old accommodations were no longer possible. If anything, the company should have re-addressed his individual needs by engaging in the process. Having done so, it could have then considered changing the accommodations.

Interactive Process – Done Right

Every employee and employment situation is unique, so frustratingly there is no one-size-fits-all approach. However, some general steps for a successful Interactive Process include:

  • First, meet with the employee. Inquire about any limitations from the known/disclosed disability (of course, employers may not simply inquire whether any employee has a disability, as this would run afoul of these disability acts as well).
  • Next, review the employee’s ability to perform the essential, required job functions. Ask what, if any, accommodations are being sought.
  • Consider in good faith the requested accommodations, or if none, what you can offer to assist the worker. If some are possible, implement them to enable the employee to be a productive worker; if none, carefully consider next steps, including perhaps an administrative termination.
  • Finally, in tricky situations, consult with employment counsel.


Guidance Issued for Use of FMLA to Care for an Adult Child

Contributed by Jon Hoag

This month, the U.S. Department of Labor (USDOL) issued an Administrator’s Interpretation and Fact Sheet to clarify when an employee may take FMLA leave to care for an adult child.  In order for a parent to take FMLA leave to care for a child age 18 or older, the parent must establish that:  (1) the child has a disability as defined by the Americans with Disabilities Act; and (2) the child must be incapable of self-care.  The USDOL issued guidance to clarify the age requirement, the impact of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) as related to the definition of a disability, and the guidance explains the FMLA leave available to parents whose son or daughter becomes disabled during military service.

The Age of Child at Onset of the Disability is Irrelevant

The guidance clarifies that the onset of a disability may occur at any age for purposes of the definition of a “son or daughter” under the FMLA.  There is no requirement for the disability to have occurred or been diagnosed prior to the age of 18.

ADAAA’ s Broader Definition of Disability Applies

The USDOL confirmed that the ADAAA broadened the scope of coverage and expanded the ADA’s definition of “disability.”  This expanded definition of “disability” is the one that applies to determine if an adult child has a “disability” for purposes of the FMLA.  The USDOL’s conclusion states very simply that the ADAAA’s expanded definition of the term “disability” will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities and that are incapable of self-care.  The guidance also notes that the child’s condition must also be a “serious health condition” under the FMLA, which will almost always be the case if the condition is a disability under the ADAAA.

Given that the ADAAA’s definition of disability is broad in scope and will be met in most cases, employers should review FMLA requests to care for an adult child with special attention given to the requirement that the parent be needed to care for the child because the child is incapable of self-care.  For FMLA leave purposes, an adult child will be considered “incapable of self-care” if he or she requires active assistance or supervision in three or more activities of daily living (ADLs) or instrumental activities of daily living (IADLs).  Examples of ADLs and IADLs are:


  • Caring appropriately for one’s grooming and hygiene
  • Bathing
  • Dressing
  • Eating


  • Cooking
  • Cleaning
  • Shopping
  • Taking public transportation
  • Paying bills
  • Maintaining a residence
  • Using telephones and directories
  • Using a post office

FMLA Leave when Adult Child is Disabled During Military Service

The guidance also clarified that a parent of an adult child disabled during military service may be entitled to take more than the 26 workweeks within a 12-month period currently provided in the FMLA as military caregiver leave.  If the disability lasts longer than the single 12-month period, the parent may qualify for additional FMLA leave in subsequent FMLA periods to care for an adult child with a disability that is incapable of self-care.


As the USDOL guidance makes clear, the changes to the ADA definition of “disability” will undoubtedly allow more parents to take protected FMLA leave.  In addition to the increase in volume of FMLA leave requests, the other issue we expect to trouble employers is whether an impairment of short-term duration is a disability.  We will continue to monitor and report on these types of ADAAA cases because the EEOC’s regulations do not make it clear when impairments of short-term duration qualify as a disability.

Ten Steps to Comply with the ADA’s Interactive Process

Contributed by Allison Chaplick

When I was learning a foreign language, such as French, Spanish or Italian, a good rule of thumb teachers engrained in my brain was that to really get a grasp on a new word or phrase, you have to repeat or use that word or phrase ten times.  It seems like a lot to ask, but really, it holds true. This rule nicely translates in the language that at times can seem like Greek to us: the Americans With Disabilities Act Amendments Act of 2008 (ADAAA) and its interactive process.   

Now that the ADAAA’s definition of “disability” had been expanded to what seems to be the maximum extent possible, thus covering more individuals with disabilities than ever before, employers will now have to engage in the interactive process more than ever before.  Here are ten steps for understanding and properly using the interactive process:

  1. The interactive process is idealistically a means for determining what reasonable accommodations are available to allow a disabled employee (or applicant) to perform essential job functions.
  1. The interactive process requires an employer to be proactive and work with the employee so that both identify the employee’s limitations and accommodations which might enable the employee to continue working.
  1. The employer should initiate the interactive process by analyzing the employee’s job functions to establish the essential and non-essential job tasks and identify barriers to job performance by consulting with the employee to learn about the exact limitations and what types of accommodations would be most effective.
  1. Ways to engage in the interactive process include meeting with the employee, exchanging letters, holding telephone conversations, requesting information about the employee’s limitations, considering the employee’s requests and discussing reasonable and effective alternatives if the request is an undue burden.
  1. During the interactive process, the employer should also give the employee an opportunity to discuss his/her abilities, restrictions and ideas for an accommodation, and should also meet with the employee’s supervisor to discuss the reasonable accommodation.
  1. The employer’s response during the interactive process to a request for a reasonable accommodation should be “expeditious,” but need not be immediate.
  1. An employer who takes an active good faith role in the interactive process will not be liable if the employee refuses to participate in the interactive process or withholds essential information during the interactive process. 
  1. At the conclusion of the interactive process, unless an undue hardship is found, the reasonable accommodation provided should be effective to allow the employee to perform the essential functions of his/her job.
  1. An employer sufficiently engages in the interactive process where it grants an effective accommodation, but not necessarily the accommodation requested by the employee. 
  1. An employer is not engaging in the interactive process where the employer denies an employee’s request without providing a meaningful dialogue or explanation of its decision.

The U.S. Equal Employment Opportunity Commission has published a very informative guideline, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act  to help employers understand their responsibilities and rights when a qualified employee (or applicant) with a disability requests a reasonable accommodation.

“Severe Obesity” Protected Under the ADA? YES!

Contributed by Jeff Risch

Resources for Human Development, Inc. (RHD), doing business as Family House of Louisiana, a treatment facility for chemically dependent women and their children, will pay $125,000 to settle a disability discrimination suit filed in September 2010 by the U.S. Equal Employment Opportunity Commission (EEOC).

A U.S. district court in Louisiana approved settlement in a case that resolves the charge of Lisa Harrison, who worked as a prevention/intervention specialist at RHD’s Family House facility in Louisiana from 1999 until she was fired in September of 2007.  In its suit, the EEOC charged that RHD violated the Americans with Disabilities Act (ADA) when it fired Harrison because of her alleged disability, severe obesity (weighing 527 pounds at time of discharge), even though she was able to demonstrate that she was able to perform the essential functions of her job.  Before the EEOC filed suit, Harrison died.

During the litigation, the court denied both of the defendant’s motions for summary judgment in an order holding that severe obesity is an impairment within the meaning of the ADA.  The court concluded that severe obesity may qualify as a disability regardless of whether it is caused by a physiological disorder or lack of will-power

Under the court-ordered consent decree settling the suit, which was entered on April 10, 2012, by Judge Ivan Lemelle (EEOC v. Resources for Human Development, Inc., d/b/a Family House of Louisiana, Case No. 2:10-cv-03322 in U.S. District Court for the Eastern District of Louisiana), the company will provide annual training on federal disability law to all human resources personnel and corporate directors of RHD nationwide.  RHD will also report to the EEOC for three years on all complaints of disability discrimination and all denials of a request for reasonable accommodation of a disability.  RHD will also name a children’s room at the Family House facility, and permanently install a memorial plaque, in honor of Harrison, who taught at the facility for almost eight years.

Employers throughout the U.S. should pay careful attention to its practices, policies and training systems to better manage and control the influx of disability related charges and lawsuits. Remember, employees need not use the words “accommodation” when they need assistance in performing their essential job functions.  It is vital that employers proactively recognize the potential issues involved with medical conditions of any nature that may cause poor performance or inappropriate behavior.  Employers need to document the interactive reasonable accommodation process in such scenarios, and then demonstrate that such process has been exhausted prior to taking adverse action against the employee.

Cerebral Accommodation: ADA Claims for Mental, Psychological, Psychiatric and Intellectual Deficit Disabilities – A few thoughts – Part 1

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. . . .