ACCOMMODATION IN THE NINTH CIRCUIT

The ADA defines “disability” in three ways:  (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such impairment; or (3) being regarded as having such impairment.  An employee who can perform the job’s essential functions with or without reasonable accommodation is protected under the ADA.  Interestingly, the Ninth Circuit Court – the federal appeals court whose jurisdiction covers Oregon as well as other western states – interprets the ADA as not requiring employers to accommodate employees who are merely “regarded as” disabled.  For an employee to be entitled to reasonable accommodation, there must be a request based on an actual disability or a record of such a disability.  Once the employer is notified of a disability and a request for accommodation is made, the employer must engage actively in assessing and establishing a reasonable accommodation.  Requests do not have to be in writing, nor to they have to use the language of the ADA including “disability” or “accommodation.”