Document View

A common mistake employers make with the Americans with Disabilities Act (ADA) is assuming that an employee's specific physical or mental impairment is or is not a disability under that law, said Peggy Mastroianni, an associate legal counsel with the Equal Employment Opportunity Commission during an American Bar Association audioconference. Mastroianni suggested that employers not assume that an impairment be permanent in order to qualify as an ADA disability.

A common mistake employers make with the Americans with Disabilities Act (ADA) is assuming that an employee's specific physical or mental impairment is or is not a disability under that law, said Peggy Mastroianni, an associate legal counsel with the Equal Employment Opportunity Commission during an American Bar Association audioconference.

Mastroianni suggested that employers not assume that an impairment be permanent in order to qualify as an ADA disability. "Long-lasting is the term we use," she said, noting that a chronic, episodic impairment can be considered a disability, even if its severe manifestations are not long-term.

Another source of trouble for employers is assuming that the following statement applies to all major life activities: "A person is substantially limited in the major life activity of performing manual tasks if he or she has 'an impairment that prevents or significantly restricts [him or her] from doing activities that are of central importance to most people's daily lives.'" This holding, from the Supreme Court case, Toyota Motor Mfg., Inc. v. Williams, does not apply automatically to all cases. Nor should employers assume that "competent, able employees" are not covered under the ADA, Mastroianni said.

The focus should be on whether the person can do the job, noted Francis Alvarez, a management attorney with law firm Jackson Lewis (White Plains, N.Y.; www.jacksonlewis.com). "I think it's better to focus on the specific job limitations ... and 'whether the employee can do the job' and is 'qualified,' instead of trying to determine whether or not someone is actually disabled," Alvarez said.

Factors surrounding the issue of reasonable accommodation for disabilities are frequently "hot button" issues in ADA cases, noted David Deratzian, a plaintiff's attorney with Hahlis & Kounoupis (Bethlehem, Pa.). One issue concerns what to do when the employee can take mitigating measures or medications that relieve the ailment. The outcomes of such cases can be affected by whether the employee is using the measures and the mitigation is complete or incomplete.