This article addresses the employment aspects of the ADA, title I. Employers who have 25 or more employees have had to comply with the ADA since July 26, 1992. As of July 26, 1994, the threshold was reduced to employers with 15 or more employees. The ADA's protections apply to anyone who meets the statute's definition of a disability. The key to the ADA is its requirement that a disabled worker can be excluded from employment only if he cannot perform the essential functions of the job, even with reasonable accommodations, which are not an undue hardship. In addition, a pre-employment physical is permitted only after a job offer is made. Thus, if the offer is withdrawn after the medical examination, the worker will know it was a medical condition which prevented his employment, and he will be alerted to investigate whether the refusal to hire him was proper. Employee health benefit plans (health insurance or self-insurance provided by the employer) also cannot discriminate against the disabled, although benefit limits which do not single out any particular disability can be applied uniformly to all plan beneficiaries.

When the ADA was first enacted, many employers feared the definition of disability would be self-defining, because work is included in the definition of a major life activity. Thus, if an employer rejected a worker because of a condition, then that condition limits a major life activity-working, and hence the condition arguable meets the definition of a disability. The EEOC and courts, however, had taken a more restrictive view. Correctly focusing on the requirement that the limitation be "substantial," the courts have held that elimination of one job is not enough to define a disability. Rather, a condition must disqualify a worker for a broad class of jobs, e.g. heavy manual labor, in order to trigger the disability definition based on the work limitation. See generally EEOC Compliance Manual, Volume 2, EEOC Order 915.002 (March 14, 1995).

Courts have held that chronic insomnia for a psychiatric nurse who had a shift job, was not a covered disability, because she was not generally disqualified from her field, nursing. Rather, she was only precluded from shift jobs. Brown v. Johns Hopkins Hospital, 51 F.3d 265 (4th Cir. 1995). Similarly, carpal tunnel syndrome which disqualified a worker from his assembly line job, was held not to be a disability, because he could perform other manual labor jobs. McKay v. Toyota Motor Manufacturing, 878 F. Supp. 1012 (E.D. Ken. 1995). Conversely, a court has held that infertility is a covered disability. Erickson v. Board of Governors, 7 NDLR ¶ 175 (N.D. Ill. 1995).

To qualify for protection, the employer must have known of the disability. Thus, where employees were fired due to absenteeism and tardiness, but the employee never informed the employer of their medical conditions which allegedly caused the absenteeism or tardiness, there cannot be an ADA violation. To be found to have illegally discriminated against a person based on their disability, the employer must have known of the disability. Miller v. National Casualty Co., 61 F.3d 627 (8th Cir. 1995) (manic depression); Hamm v. Runyon, 51 F.3d 721 (7th Cir. 1995) (arthritis); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928 (7th Cir. 1995) (amyloidosis).

In any interesting case, a police officer who failed to monitor his diabetic condition was held not to be a qualified person, because his uncontrolled diabetes prevented him from performing his policy officer duties. Siefkon v. The Village Of Arlington Heights, 4 A.D. Cases 1441 (7th Cir. 1995).

The ADA list reflects some established solutions, as well as some more burdensome requirements. The ADA contains the old standbys of making facilities accessible (e.g., wheelchair ramps, elevators), provision of equipment or devices (e.g., an amplification device for a telephone), and reassignment to a vacant position. The ADA also requires the use of part-time or modified work schedules. Thus, if a job is too stressful, or a worker must catch a special bus, the employer must allow part-time work or a modified work schedule. In addition, if a reader or interpreter is needed for a blind or deaf person, such an "assistant" must be provided.

The most dramatic requirement is job restructuring. Employers are required to revise or reassign non-essential job duties in an attempt to fit the job to the worker. Thus, if a maintenance worker usually must lift over 25 pounds 10% of the time, and a disabled applicant cannot lift over 25 pounds, the employer cannot automatically deny the worker the job. Rather, the employer must attempt to restructure the job so as to assign the 10% heavy work to other maintenance workers, so that the disabled worker only receives light work assignments.

Of course, if an accommodation would impose an undue hardship, it is not required. For most corporations, however, it is difficult to prove that any one accommodation is difficult to prove that any one accommodation is an undue hardship. A major factor in determining if an accommodation is an undue hardship is to compare the accommodation's cost to the employer's entire budget. For most employers, even a $20,000 a year reader for a blind worker may appear to be reasonable when compared to the employer's million dollar payroll.

The courts, however, have placed some limits on what is "reasonable." Thus, one court held that an employer does not have to combine two part-time jobs so as to create a full-time job for a disabled worker. Fredo v. Reno, 21 F.3d 1391 (7th Cir. 1994). Similarly, while a disabled worker must be considered for any vacant position he applies for, he need not be given any preference. The employer can follow its normal procedure for posting or advertising a vacancy, and then hire the most qualified person for the job. Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995); Myers v. Hose, 50 F.3d 278 (4th Cir. 1995).

The courts have also held employers need not grant unlimited leaves of absences, but rather can place reasonable time limits on them. Likewise, employers need not accommodate unpredictable and excessive absences from work. Jackson v. Veterans Administration, 22 F.3d 277 (11th Cir. 1994); Tyndall v. National Education Centers, 31 F.3d 209 (4th Cir. 1994); Leatherwood v. Houston Post, 59 F.3d 533 (5th Cir. 1995).

There is also a duty on the worker to cooperate with the employer's effort to determine what reasonable accommodation is needed. A court has denied benefits when a worker failed to answer the employer's inquiry as to what accommodation was needed, and refused to provide release so the employer could discuss with the worker's doctor as to what reasonable accommodation was needed. Beck v. University of Wisconsin Bd. of Regents, ____ F.3d ____, No. 95-2479 (7th Cir. 1996).

Employees must, of course, be able to safely perform the job. Thus, if there is a significant risk to the health and safety of others or the employee, which cannot be eliminated by reasonable accommodations, then the worker need not be hired. However, as the Supreme Court made clear in School Board of Nassau County v. Arline, 480 U.S. 273,107 S.Ct. 1123 (1987), safety and health risks will not be judged based on unfounded fears or even on the subjective views of an individual physicians. Rather, the courts will look to the opinions of public health officials, and objective and state-of-the-art medical opinions must be relied upon. It also appears the risk may have to be a high probability in order to disqualify the worker, although the greater the harm, e.g. death, the lower the risk needs to be.

Indeed, employers may not use any qualification standard, employment test or other selection criteria, unless it is shown to be job-related and consistent with business necessity. If any test or criteria disqualifies a disabled worker, then the employer must show that all persons who fail the test or criteria cannot perform the essential functions of the job, even with reasonable accommodations. Thus, a police department can not require applicants for a police officer position to run the 100 yard dash in 10 seconds, if current police officers can not meet that standard, e.g., the overweight 10 year veteran of the force.

The courts have largely taken a reasonable approach to safety. Thus, for example, court has held that diabetics are unreasonable risks as school bus drivers, because of the risk of a blackout. Daugherty v. City of El Paso, 1995 WL 360325 (5th Cir. 1995). Similarly, an HIV positive surgeon was found unable to safely perform his job, even with reasonable accommodations. Bradley v. University of Texas, M.D. Anderson Cancer Center, 3 F.3d 922 (5th Cir. 1993); Doe v. University of Maryland Medical System Corp., 50 F.3d 1261 (4th Cir. 1995).

In a troubling case, one court held that if high dose chemotherapy with bone marrow transplant is covered for some cancers, it must be covered for all cancers for which the treatment is not experimental. In that case, the court faced alleged discrimination against breast cancer victim. Of course, the insurance could have refused to cover such treatment for all cancers. It was the insurers attempt to single out certain cancers for unfavorable treatment that lead to the discrimination verdict. Henderson v. Bodice Aluminum, Inc., ____ F.3d ____, 1995 WL 566954 (8th Cir. 1995).

On the retirement side, a disability retirement plan can have different rules from a normal retirement plan. The reason is that employers need not even offer disability retirement, and thus such a disability plan gives disabled persons something other persons, who are not disabled do not have.

The majority of ADA complaints come from discharged employees, 51%. Another 26.6% of the complaints are from employees who allege they were denied a reasonable accommodation. Only 10.4% of the ADA charges come from the hiring processor. In terms of disability types, 19.1% of the ADA charges involve the back, with psychiatric conditions encompassing 11.7% and persons with neurological problems filing 11.7% of the ADA charges. Interesting, HIV positive persons only account for 1.8% of the ADA charges.

The courts have required that an individual present some evidence of a discriminatory motive, in order to have a charge presented to a jury. Thus, when an epileptic worker was laid off as part of a large layoff, and other more senior persons were also laid off, the court held there was no evidence from which a jury could infer discrimination. Newman v. GHS Osteopathic, Inc. Parkview Hospital Division, (3rd Cir. 1995). Similarly, if the person who fired the disabled worker was also the person who had hired him, and he knew when he hired him that he had a disability, there is a strong inference that there was no discrimination. Tyndall v. National Educ. Centers, 31 F.3d 209, 215 (4th Cir. 1994).

Based on collateral claims, a worker may be estopped from alleging illegal discrimination. Thus, when an injured worker claims on insurance forms he is totally disabled, he cannot turn around and claim an ADA violation alleging his employer wrongfully prevented him from working. August v. Offices Unlimited, Inc., 981 F.2d 576, 581 (1st Cir. 1992); Reigel v. Kaiser Foundation Health Plan of North Carolina, 859 F. Supp. 963, 969-970 (E.D.N.C. 1994). Likewise, if a person recovers a large tort verdict based on them being disabled, he cannot then allege in the EEOC proceeding he can work, and thus he was illegally denied employment. McNeill v. Atchison Topeka and Santa Fe Railway Co., 878 F. Supp. 986 (S.D. Tex. 1995).

This may mean segregating out light-duty work, allowing part-time work and modified work schedules, as well as providing special equipment, readers and interpreters. Hiring disabled workers may cost more, but that is what the law requires. Smart employers have developed programs so as to ensure compliance with the ADA, and document that reasonable accommodations were offered.