Employment Law Updates

CANTANKEROUS OR MENTALLY IMPAIRED?

Certain mental disabilities recognized by the ADA, notably bipolar disorder, paranoia and schizophrenia, can lead to conduct issues, even when an otherwise qualified employee is medicated or undergoing other treatment. But does an employer have to accommodate the employee who creates conflict with other employees and then claims to be impaired in the major life activity of “interacting with others?” Courts in some jurisdictions do not recognize “interacting with others” as a major life activity. However, the Ninth Circuit, whose jurisdiction includes Oregon, does, defining that type of impairment as “characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary.”  Fortunatley, the court made clear that not every cantankerous person who has trouble getting along with coworkers will qualify as disabled. However, if the employee gives the employer notice of a mental disability and requests reasonable accommodation based on a substantial limitation in interacting with others, the employer may have a duty to accommodate that employee, provided he or she is otherwise qualified for the position. And as with other disabilities and major life activities, Oregon employers should not assume that conduct issues are the result of a mental disability -- absent notification of disability and need for accommodation, employers are not required to accommodate employees who create conflict in the workplace.

ACCOMMODATION OF MENTAL DISABILITY IN THE NINTH CIRCUIT

The Ninth Circuit Court interprets the ADA as not requiring employers to accommodate employees who are merely “regarded as” disabled under the definitions provided in the statute.  While a case of potential mental disability may seem more complicated, the effect is the same.  Absent notice by the employee, the employer has no obligation to suggest that employee conduct might be the result of a mental disability.  Nor does the employer have a duty to accommodate the employee that is “regarded as” mentally impaired.  However, courts recognize that mental disabilities may make it more difficult for otherwise qualified employees to communicate their need for accommodation to the employer.  Therefore, once notice is given to the employer of a mental disability – by the employee, the employee’s family, trusted friend or healthcare provider – the employer may have a heavier burden of negotiating a reasonable accommodation with the impaired employee.

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.”

WHEN IS A DISABLED EMPLOYEE PROTECTED UNDER THE ADA?

An employee who has a disability that impairs the employee’s ability to engage in a “major life activity,” such as taking care of oneself, walking, talking, breathing, seeing, hearing, learning, reproducing, interacting with others, sleeping, and working, may be protected under the ADA if the employee can perform the essential functions of the job with or without reasonable accommodation. If the employee is otherwise qualified for the position, then the employer must provide reasonable accommodation. Courts have discussed what accommodations are reasonable and also what roles the employer and the employee must play in the process of negotiating the appropriate accommodation. Once the employer is made aware that a disability exists, the employer must engage in a discussion of what assistance the employee needs to perform the essential functions of the job. Notification does not have to come from the employee. It can come from the employee’s healthcare provider, family or trusted friend.

WHAT IS A DISABILITY?

Not all impairments are disabilities under the ADA.  Disabilities that impair one’s ability to engage in “major life activities,” such as taking care of oneself, walking, talking, breathing, seeing, hearing, learning, reproducing, interacting with others, sleeping, and working may be protected under the ADA.  This does not mean that all employees who experience difficulties in those areas are disabled under the ADA. Impairments are considered in their medicated or curative states.  For example, while asthma may be a disability under the ADA, an employee with asthma may not be disabled if medications taken regularly prevent the symptoms of asthma.  Similarly, severely near-sighted employees may be seriously impaired in the major life activity of seeing, but if glasses or contacts bring their vision to normal, they are not disabled under the ADA.  Furthermore, a disability is usually a long-term or recurring condition.  Short-term conditions are not considered disabilities.  For example, an employee who sprains his ankle skiing is not protected under the ADA.  It may be difficult to determine at times whether an injury will result in a temporary condition of impairment or a disability under the ADA.  Consult your company’s attorney when you have doubts.

OBESITY: APPEARANCE OR IMPAIRMENT?

According to a recent study, roughly 64.5% of American adults are overweight, and nine million adults in the U.S. can be classified as morbidly obese.  It should come as no surprise, then, that employers are frequently faced with the question whether they must accommodate an obese employee under the Americans with Disabilities Act (ADA).  A federal appellate court recently said no, holding that non-physiological morbid obesity is not an impairment under the ADA.  In that case, the employee was hired as a driver/dockworker in 1990.  At the time he was hired, the employee weighed 345 pounds, and during the next five years, his weight fluctuated between 340 and 450 pounds.  In 1995, the employee was injured when a ladder rung he was standing on broke, and he took a leave of absence to recover from those injuries.  When he requested leave, the employer advised the employee of the employer's policy that (i) any employee who remains on a leave of absence in excess of 180 days would be terminated; (ii) the employee would need a physician's release before returning to work; and (iii) the employee might be asked to take a physical exam before returning to work.  When a physician indicated that the employee could not safely perform his duties upon returning to work, the employer terminated the employee.

The employee sued, alleging that his physical characteristic -- morbid obesity -- constituted an impairment that his employer regarded as affecting his ability to do his job, thereby constituting a disability under the ADA.  The court rejected that argument, holding that the employee's mere appearance was not sufficient to constitute an impairment.  Rather, to qualify as an ADA impairment, a physical characteristic (here obesity) must result in a physiological disorder.  To hold otherwise, the court said, would suggest that any physical abnormality -- being extremely tall, for example -- may be an ADA impairment.  Extending ADA protection "to all 'abnormal' (whatever that term may mean) physical characteristics," the court cautioned, would cause the ADA to become a catch-all for any claim of discrimination based on appearance, size or any other characteristic, and the statute was never intended to be that broad.  Equal Employment Opportunity Commission v. Watkins Motor Lines, Inc., No. 05-3218, September 12, 2006.

Although this case may give employers more leeway in terms of actual impairments, remember that the ADA also protects individuals who are "regarded as" disabled.  Accordingly, if the employer regarded the employee as disabled, the case could have had a different outcome.