Richard D. Alaniz

Complying with the Americans with Disabilities Act (ADA) has always required employers to walk a fine line. The guidelines aren’t always clear, every employee’s disability and particular situation involve a unique set of factors, and the laws are constantly developing. Many employers and employees alike are still trying to sort out the implications of the ADA Amendments Act of 2008 (ADAAA), particularly now that the act has been expanded to specifically cover diseases such as diabetes and epilepsy.

Companies that have yet to consider the implications of the ADAAA need to do so right now. If not, they may find themselves the next targets of a lawsuit by the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC recently filed several lawsuits against companies over ADAAA violations, including a Maryland surveying company. The EEOC claims that the company, Fisher, Collins & Carter, illegally fired two workers who had worked at the company for years because of their diabetes and hypertension. In the lawsuit, the EEOC claims Fisher Collins discriminated against the two workers when it fired them shortly after requesting that every employee fill out a questionnaire about their health conditions, medical issues, and medications.

The complaint seeks a permanent injunction enjoining the company from engaging in any future employment practice that discriminates because of a disability; implementing written policies to provide equal employment opportunities for qualified people with disabilities; monetary and injunctive relief, including back wages, compensatory, and punitive damages for both of the workers; and changes in employment policies that will provide equal employment opportunities for qualified people with disabilities.

“Diabetes is becoming more common in the United States, yet many employers still make employment decisions based on myths, fears, or stereotypes about that condition,” said EEOC Regional Attorney Debra M. Lawrence in a statement. “We brought this lawsuit because the underlying purpose of the ADA is to eliminate discrimination for people with disabilities who are qualified to do the job.”

When it announced the lawsuit against Fisher Collins last September, the EEOC also said it was suing two other companies - one for failing to provide a reasonable accommodation to an employee with severe arthritis and another against a company that fired an employee who had cancer and requested a temporary part-time schedule as an accommodation.

“These cases, among the first filed by the EEOC under the ADA Amendments Act, illustrate the continuing need for rigorous enforcement of the law, as well as further education about the ADA’s requirements,” said General Counsel David Lopez in the statement. “Congress has made the scope of the ADA clear and broad: Individuals with disabilities - including serious medical conditions such as cancer, diabetes, and severe arthritis - must be evaluated according to their qualifications, and not based on unfounded fears or stereotypes.”

Employees with epilepsy and diabetes can represent particular challenges for employers, especially because many have outdated stereotypes about the implications of these disabilities.

Now that the ADA has been amended again and the EEOC is aggressively pursuing companies it views as violators of the Act, employers can save themselves a great deal of trouble if they prepare for how and whether they can work with employees who have epilepsy, diabetes, and other disabilities.

MILLIONS AFFECTED, BILLIONS SPENT

Diabetes, a disease where a lack of insulin production leads to high blood glucose levels, is on the rise in the United States. According to the Centers for Disease Control and Prevention, 23.6 million Americans, or 7.8 percent of the population, have diabetes, representing a “dramatic” increase in recent years.

Another 2 million Americans have epilepsy, a chronic neurological condition characterized by recurrent seizures, according to the CDC. The types and severity of symptoms can vary drastically. Some people with epilepsy may suffer a momentary loss of senses, while others may lose consciousness or experience seizures. Epilepsy can be caused by many different conditions.

The CDC has found that epilepsy and diabetes cost billions of dollars every year. Epilepsy results in an estimated annual cost of $15.5 billion in medical costs and lost or reduced earnings and production, while diabetes amounts to approximately $174 billion a year in costs and lost productivity.

DEFINING DISABILITIES

The amendments to the ADA make it crystal clear that epilepsy, diabetes, and other impairments that are episodic or in remission can qualify as disabilities. The EEOC says that episodic impairments - which include hypertension, multiple sclerosis, asthma, major depression, bipolar disorder, and schizophrenia along with epilepsy and diabetes - meet the definition of a disability if they would substantially limit a “major life activity” when these disabilities are active.

With the amendments, more disabled workers are covered by the ADA. While the EEOC has only now started to bring lawsuits under the ADAAA, the commission has been actively working on behalf of employees who claim they were discriminated against. In 2010, 4.8 percent of “merit factor resolutions,” which include settlements, withdrawals with benefits, successful conciliation, unsuccessful conciliations, were based on employees with diabetes. Another 2 percent of merit factor resolutions were on behalf of those with epilepsy.

WORKING WITH EMPLOYEES WHO HAVE DIABETES AND EPILEPSY

While the ADAAA brought some significant changes to the act, many other aspects of the ADA remained the same. Employers still must make “reasonable accommodations” for employees and job applicants with disabilities like diabetes and epilepsy, as long as doing so does not create an undue hardship for the employer. According to the EEOC, what constitutes an undue hardship can depend on the company’s size, financial resources, and business needs. Employers are not required to provide the exact accommodation requested, but instead must engage in an interactive process through which the employer and employee work together to arrive at a reasonable accommodation.

Even with the expanded definitions of disabilities, employees who have epilepsy and diabetes still must be able to perform the essential functions of their jobs, with or without the reasonable accommodation. This can be tricky when employees have neurological conditions such as epilepsy. Along with the ADAAA, employers have to consider their obligations under other federal and state regulations. For example, the Occupational Safety and Health Act requires companies to maintain a safe workplace for its employees.

These, at times conflicting, regulations can place employers in an untenable position. Consider employees who operate heavy equipment or sharp instruments in the course of their employment. If it turns out an epileptic employee has been hired to operate this type of equipment or use such instruments and has difficulties controlling seizures, employers would likely have grounds to remove them from that position.

On the other hand, epileptic employees with desk jobs may request simple safety measures as accommodations, such as a mat on the floor or padding on edges of desks and cabinets in case they should collapse or have a seizure. Some people with epilepsy are also very sensitive to light, which can trigger seizures or headaches. For these employees, purchasing a monitor glare guard or using softer lighting would almost certainly be considered a reasonable accommodation.

Unfortunately for employers, there are few hard-and-fast rules to help them determine how to work with employees who have epilepsy and diabetes. By taking certain steps, though, employers can ensure they are in compliance with ADAAA, protect themselves in case of a lawsuit, and retain otherwise productive employees.

•Review your current policies and procedures
Considering the evolution of the ADAAA, now is the time to review current policies and procedures to make sure those are in compliance. Employers should work with their counsel as well as human resources to ensure that company policies are up-to-date with the current requirements. Part of this review should also review the manner in which requests for accommodations are handled to determine if the reporting chain for accommodations is clear and logical.

•Update job descriptions
Employers can’t ask job applicants and workers whether they have diabetes or epilepsy, but they can expect their employees to do the jobs they were hired to do. Up-to-date, accurate job descriptions which clearly identify the essential functions can help clarify what the expectations are for each job.

•Educate employees, managers, and supervisors
There are still many misconceptions about diabetes and epilepsy, and education regarding all aspects of the ADAAA should be an ongoing part of training regarding employment-related issues.

•Carefully consider each situation
Companies shouldn’t expect a rubber-stamp approach for employees with diabetes, epilepsy, and other episodic disabilities. Each employee’s situation and job should be considered carefully and respectfully.

If the employer ultimately decides that the employee is requesting an accommodation that represents an undue hardship, a willingness to try to work with the employee can go a long way in heading off a lawsuit.

•Document everything
When it comes to ADAAA, it’s critical to put everything in writing. This can provide legal protection in the event an employee complains to the EEOC or files a discrimination lawsuit under the ADA.

With the amendments to the ADA, employers should expect to see more employees with epilepsy, diabetes, and other episodic diseases requesting disability accommodations. By being knowledgeable about their obligations and remaining prepared to accommodate requests that are reasonable, employers can protect themselves from lawsuits and make sure they can keep the right people in the right jobs.

Publication date:02/21/2011