The Americans with Disabilities Act (the “ADA”) seeks to eliminate unwarranted discrimination against disabled individuals in order to guarantee those individuals equal opportunities and to provide the United States with the benefit of their consequently increased productivity.  This is why the ADA prohibits employers with 15 or more employees from discriminating against qualified individuals on the basis of disability regarding job application procedures, hiring, firing, advancement, employee compensation, job training, and other terms and conditions of employment.  This not only includes individuals who are disabled, but also those persons who have a history or record of disability, or individuals who are perceived by others as having a disability. 

What is a Disability?

A disability is defined as a physical or mental impairment that substantially limits one or more major life activities.  It is important to remember that the ADA protects employees who are regarded as having a disability even if they are not actually in fact disabled.  In 2008, Congress expanded the scope of coverage under the “regarded as” prong of the definition of “disability” to protect employees who were subject to a prohibited action (e.g., termination; failure to hire) due to an actual or perceived impairment.  To be “regarded as” having such an impairment, the employee must demonstrate that she is actually impaired and such impairment is known to her employer, or her employer perceives her to be impaired.  The Congressional amendments in 2008 specifically used the word “impaired” rather than “disabled,” meaning an employee no longer needed to prove that she was regarded as having a substantially limitingimpairment.  Please note that according to Department of Labor guidance, employers are not required to provide reasonable accommodations to employees who are merely “regarded as” disabled.

Major Life Activity

A major life activity includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.  It is also broadened to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.  As you can see, there are a lot of areas covered that could involve a major life activity.

Substantially Limits

Not all impairments will qualify as a disability under the ADA.  If an employee stubs her toe on the desk and it hurts for a few minutes where she cannot walk on it—that is not a disability under the ADA.  If; however, an employee loses her arm in a motorcycle accident, then that is more likely to be considered a disability under the ADA. 

An impairment is substantially limiting if it renders an individual unable to perform a major life activity that the average person in the general population can perform, or if it significantly restricts the condition, manner, or duration under which an individual can perform a particular major life activity as compared to an average person in the general population.  To determine whether an individual is substantially limited in a major life activity, the employer should look at:

1. The nature and severity of the impairment;
2. Its duration or anticipated duration; and
3. Its long-term impact.

Advice for Employers

If a covered employer believes that one of its employees has a disability, and that employee is requesting an accommodation in the workplace, then the employer should work with the employee to determine the nature and extent of her disability and whether that employer can provide a reasonable accommodation to allow that employee to successfully perform her job tasks to the same extent as a non-disabled person.