ADA: the law meets medicine - Americans with Disabilities Act of 1990

Are employees protected if they can control their conditions with medication?

One of your managers needs your advice: He wants to fire an employee for repeated absenteeism and wants to make sure he is legally entitled to do so.

The employee in question suffers from depression but is able to control this condition with medication. As a result, you determine that he is not disabled, is not protected by the Americans With Disabilities Act (ADA) and is not entitled to accommodation for his attendance problem.

That's right, isn't it?

Yes, that decision is perfectly legal - in some federal circuits. (For an explanation of the federal circuit courts, see last month's Legal Trends column.) In other circuits, however, it is dead wrong.

Here's why.

Some federal circuits have decided that they will determine if a condition is a disability (and therefore protected by the ADA) by considering it in its unmedicated state. For example, a diabetic would be considered disabled even if she could control her condition by taking insulin at regular intervals.

Other federal circuits have decided to consider conditions in their medicated state. According to this view, the same diabetic would not be considered disabled because she is able to function without significant limitation when she takes her medication.

Other circuits have yet to decide this issue at all.

The stakes in this legal debate are enormous. By extending the protection of the ADA to individuals who can control their conditions with medication, courts increase the number of employees to whom HR professionals must offer accommodation. Courts that do not offer ADA protection to these individuals limit the number of employees who can demand accommodation. Either view affects HR professionals dramatically.

Because the courts are in disagreement, the issue will likely be decided by the Supreme Court at some point, and it is hoped that all employers will have a single, clear standard to follow. Until then, however, you will need to understand how the law works in your jurisdiction.

Background

Every ADA case involves a primary question: Is the individual bringing the suit disabled within the meaning of the statute?

According to the language of the law, the ADA protects individuals who:

* Have a history of impairment. (Some conditions flare up from time to time, then subside. People who suffer from such conditions are protected, even when the condition is not active.)

* Do not suffer from a condition that is covered by the law but are treated - or "regarded by" employers - as if they do.

* Suffer from a physical or mental impairment that substantially limits one or more major life activities.

The ADA does not define "major life activities." However, regulations published by the Equal Employment Opportunity Commission (EEOC) define the phrase as "those basic life activities that the average person in the general population can perform with little or no difficulty," including "caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, learning and working."

Individuals are substantially limited if they cannot perform an activity in the same manner, under the same conditions or for the same length of time as an average person in the general population.

According to the EEOC regulations, whether an impairment is substantially limiting depends on factors such as:

* The nature and severity of the impairment.

* The duration, or expected duration, of the impairment.

* The actual or expected long-term impact of the impairment.

Individuals are considered substantially limited in the activity of working only if they are significantly restricted in their ability to perform a class or broad range of jobs, as compared to an average, similarly situated person. An inability to perform a single, particular job is not a substantial limitation and does not qualify for ADA protection.

The Contradictions

Although the ADA has a fairly comprehensive scheme for determining if individuals are disabled, the law does not clearly state if this determination is supposed to be made with or without regard to mitigating measures, such as medications.

Even the ADA's legislative history appears inconsistent on this issue. In some ways, it seems that Congress intended that disability be determined without regard to mitigating measures. For example, the House Judiciary Report states that when determining disability, "[t]he impairment should be assessed without considering whether mitigating measures, such as auxiliary aids or reasonable accommodations, would result in a less-than-substantial limitation."

On the other hand, at least one Senate Report indicates that in determining the existence of a disability, the focus should be on an impairment's effects on the individual, not on the impairment's qualities.

To further complicate matters, the EEOC's regulatory guidelines also are inconsistent. Portions of the guidelines state that the existence of an impairment should be determined "without regard to mitigating measures such as medicines, or assistive or prosthetic devices." The guidelines further state that "an individual with epilepsy would be considered to have an impairment even if the symptoms of the disorder were completely controlled by medicine."

But another section of the guidelines takes the opposite view. Specifically, that portion states that someone with the condition of high blood pressure controlled by medication may not have a disability but may be regarded as having one.

This is important because the "regarded as" provision - by the EEOC's own definition - protects only those individuals who are not actually disabled but who are treated as if they are. (See the legal definition on page 99.) That means the individual in the above example who can control his or her condition with medication cannot - by definition - be considered disabled under the law.

Without the "regarded as" provision, employers could discriminate against someone they believed to be disabled, then win a lawsuit on a technicality when they learned the individual was not actually disabled.

Disability in the Medicated State

Several federal courts, including the 6th and 10th Circuits of the U.S. Court of Appeals, consider an individual's condition in the medicated state.

The case of Murphy v. United Parcel Service, Inc. (946 F. Supp. 872 D. Kan. 1996), decided by a federal district court in Kansas, demonstrates the legal reasoning used in these cases. In the case, a truck mechanic (Murphy) alleged that his employer (UPS) discharged him due to his disability - hypertension.

In an unmedicated condition, Murphy's blood pressure was approximately 250/160. Murphy, who had successfully worked as a mechanic for 22 years for other employers, alleged that this high blood pressure limited him in numerous major life activities. But as long as he took medication, his only limitation was that he could not hold a job requiring repetitive lifting of 200 pounds.

Unlike at Murphy's previous employers, however, UPS drivers must meet U.S. Department of Transportation regulations. These regulations require individuals to maintain a blood pressure lower than or equal to 160/90. Murphy's physician testified that - even with medication - Murphy's blood pressure would always be higher than 160/90. As a result, UPS discharged Murphy.

In determining whether Murphy was disabled, the court looked at his condition in its medicated state. Because his only physical limitation - in the medicated state - was that he could not hold a job that required repetitive lifting of 200 pounds, the court ruled that he was not substantially limited in any major life activity and was therefore not disabled.

The 6th and 10th Circuits also have found that the ADA guidelines published by the EEOC directly conflict with the ADA's requirement that plaintiffs prove that an impairment substantially limits their lives. For example, if diabetics can control their condition with insulin, they cannot argue that their lives are substantially limited by the condition.

Further, saying that an individual is disabled if he or she needs insulin removes from the ADA's definition of disability the requirement that only those persons are disabled who are substantially limited in major life activities. Although the word "limited" may convey different shades of meaning, it cannot be meaningless, as acceptance of the EEOC's interpretation would render it. Thus, because the EEOC's interpretive guidance conflicts with the ADA's statutory provisions, the guidance must be rejected, these courts have reasoned.

These courts also decline to follow the ADA's legislative history. According to them, the language of the statute is not ambiguous, so the legislative history and congressional intent need not be considered.

When medication partially - but not completely - controls an individual's condition, it becomes extremely difficult to determine if the individual is disabled. For example, if an epileptic can reduce her number of seizures with medication - but cannot completely eliminate them - would she be protected by the ADA?

Unfortunately, there is no easy answer. In this example, it depends on whether the individual - despite medication - still suffers enough seizures to render her substantially limited in a major life activity. The answer will vary from one case to the next. HR professionals faced with such a situation should consult with experienced legal and medical advisers to help them properly make this determination.

Disability Determined in Unmitigated State

Numerous other federal courts, including the 1st, 8th, 9th and 11th Circuits of the Court of Appeals, have taken the position that disability must be determined without regard to mitigating measures. Most recently, in September 1998, the 5th Circuit ruled that serious impairments analogous to those mentioned in the EEOC's guidelines and the ADA's legislative history must be considered in their unmitigated state.

Some courts point out that the ADA's definition of "disability" is similar to the one used in the Rehabilitation Act, and that several cases decided under the Rehabilitation Act determined that disability should be decided without regard to mitigating measures. Congress was aware of these court rulings when it passed the ADA, so it must have agreed with them; otherwise, it would have used a different definition of disability.

The courts holding this position also consider the EEOC's interpretive guidance to be persuasive. They find nothing inherently illogical in determining whether an impairment substantially limits a major life activity without regard to mitigating measures.

Likewise, they find that nothing in the language of the statute rules out this approach. The statute does not say "impairment plus treatment" or "impairment after treatment" or "treated impairment." It just says impairment.

Furthermore, according to these courts, the EEOC's interpretative guidance does not ignore the statute's "substantially limits" requirement. Rather, the interpretation relates "substantially limits" to the untreated impairment.

Under this view, courts and employers must still determine whether the untreated impairment substantially limits a major life activity for the untreated impairment to constitute a disability under the ADA.

This interpretation of the law poses problems for human resource professionals: When making disability determinations, they may be forced to speculate as to the nature and extent of an employee's condition in the absence of medication.

For example, consider individuals with chronically recurring depression. If these individuals control their condition with medication, their depression will never result in the substantial limitation of a major life activity.

Without medication, they may suffer depressive episodes of varying degrees from time to time. However, it would be impossible to predict when a depressive episode may occur, or its length or severity. Anyone attempting to assess whether or when the individual would be disabled in the absence of medication would be resigned to speculation.

To help you make such decisions, and to give those decisions some legal credence, seek competent medical advice. Don't rely on your own guesses about what employees may or not experience. Always get medical experts to provide documented analysis and estimates of the potential limitations employees are likely to experience in an unmedicated state.

Before talking to a medical professional about an employee, get the employee to sign a medical authorization allowing the company to do so.

In seeking medical advice, the most important thing an HR professional can do is make sure the employee is examined and diagnosed by a qualified, conservative physician. Where do you find such physicians? Go to HR professionals who are extensively involved in handling workers' compensation claims for their companies and ask them to provide you with referrals.

If the employee is being treated by a physician of the employee's own choosing, the company may need to pay for the employee to be examined and diagnosed by a physician of its choosing. At the very least, the company may need to have a physician of its choosing examine all relevant records, test results and other diagnostic procedures performed by the employee's physician to determine if that physician's diagnosis and prescribed treatment are reasonable and necessary.

Undecided Circuits

The 2nd, 3rd, 4th and 7th Circuits have yet to decide this issue. What should employers in those circuits do?

At the very least, HR professionals in these circuits have a vested interest in following the development of this issue within their jurisdictions. Make sure you keep track of any upcoming ADA cases that would resolve this issue at the circuit court level.

If there are no cases at the circuit court level, then look for decisions within your district that indicate the trend in your jurisdiction.

If no decisions exist at the district court level, you have two options.

You can play it safe by considering employees' conditions in their unmedicated states - which would follow the lead set by the majority of circuit courts that have decided this issue - and offer reasonable accommodation where appropriate.

The other option is to carefully consult with legal counsel about the possible consequences of making the disability determination in the medicated condition. This choice ultimately boils down to a business decision of how much risk your company is willing to incur. Most companies will probably determine that taking the more cautious approach makes the most sense.

Timothy S. Bland, PHR, is a labor and employment attorney with McKnight Hudson Ford & Harrison in Memphis, where his practice is limited to representing management. He is a magna cum laude graduate of the University of Illinois College of Law.

COPYRIGHT 1999 Society for Human Resource Management
COPYRIGHT 2004 Gale Group