The Supreme Court focuses on the ADA - includes related article on law's legal background - Americans with Disabilities Act

The highest court in the land gives employers some common-sense misguidance for determining disability.

For the second time in as many years, the U.S. Supreme Court has addressed the issue of who is protected under the Americans with Disabilities Act (ADA). However, unlike the rulings handed down in 1998, this year's decisions appear to offer better news to employers.

Last year, in Bragdon v. Abbott, the court interpreted the ADA expansively and ruled that even someone who has asymptomatic HIV may be considered disabled under the act.

In three cases this year, Sutton v. United Air Lines (130 F.3d 893), Murphy v. United Parcel Service (141 F.3d 1185)and Albertsons v. Kirkingburg (143 F.3d 1228), the court narrowed the definition of who is covered by the ADA. In these cases, the court ruled that individuals who have physical impairments but who can function normally with mitigating measures, such as eyeglasses or medication, generally are not disabled under the ADA.

As a result, employers and courts now may consider individuals as they actually function, without being forced to speculate about how they might function without medical aids.

These rulings are important because the ADA does not clearly state if mitigating measures, such as medications, should be considered when determining disability. In other words, if medication sufficiently controls a person's condition, is that person still considered disabled under the ADA? Before the recent Supreme Court pronouncements, lower federal courts had different answers to that question.

Most courts accepted the approach of the Equal Employment Opportunity Commission (EEOC) and considered an individual's condition in an unmedicated, or unmitigated, state. Other courts disagreed, holding that disability should be determined in light of mitigating measures.

The Supreme Court decided to hear the Kirkingburg, Murphy and Sutton cases to resolve the issue. Fortunately for employers, the court adopted a common-sense approach: Take employees exactly as they are, mitigating measures and all.

The Decisions

In the Kirkingburg case, the Albertsons supermarket chain discharged an Oregon truck driver with monocular vision after he failed a vision test. Even with corrective lenses, the driver could not meet vision requirements set by federal regulations for commercial drivers. However, according to the Supreme Court, the driver's brain had developed subconscious mechanisms for coping with his visual limitations and his body thus compensated for the impairment.

In the Sutton case, twin sisters applied for jobs as global pilots with United Air Lines but were rejected because they were nearsighted. Although they had 20-20 vision when they wore corrective lenses, United required uncorrected vision of 20100 for that particular pilot position. Neither sister met this requirement.

In the Murphy case, UPS discharged a mechanic because he had high blood pressure. As part of his job, the mechanic was required to operate commercial vehicles. Even with medication, his blood pressure was not low enough to meet Department of Transportation (DOT) blood-pressure regulations for operators of commercial motor vehicles.

In all three cases, the plaintiffs argued that their medical conditions should be viewed in their unmitigated state, and that-as a result - they were disabled under the ADA and entitled to the act's protection. The Supreme Court rejected their contentions.

The court ruled that employers should consider employees - or potential employees - as they actually function, not as they could or might function without their medication or other mitigating measures, when deciding whether they are disabled under the ADA.

The court noted that any other interpretation might label the majority of Americans - around 160 million people - as persons with disabilities, whereas Congress explicitly stated in the ADA that it sought to protect an "insular minority" of 43 million Americans.

Implications for Employers

While employers should consider the new decisions a major victory because they help bring order to the chaos caused by the ADA's lack of clarity, some cautionary notes are in order. A very real possibility still exists that individuals who successfully use mitigating measures will be considered disabled under the law.

Here are some important caveats:

Don't treat employees as if they are disabled. Employees who can control their conditions won't normally be considered disabled - unless you treat them that way. Employees who are "regarded as" being disabled by their employers automatically gain the protection of the ADA.

For example, assume a worker who suffers from depression takes medication that completely controls his condition. His employer learns he is taking the medication and discharges him based on the assumption that people taking psychiatric medication cannot successfully perform their jobs. Because the employer "regards" the employee as disabled, the employee will be considered disabled and protected by the law.

To avoid this trap, use objective medical evidence as the basis for any performance-based adverse actions taken against employees who use mitigating measures. For example, don't assume that an employee with a prosthetic leg cannot perform a job that requires a lot of walking. Instead, get an opinion from a qualified physician.

If the physician states that the employee cannot perform the essential functions of the job even with the mitigating measure and you cannot reasonably accommodate the employee, then you are probably safe in taking the adverse action. But if the doctor says the employee could do the job, with or without reasonable accommodation, an adverse action based on performance capability would violate the ADA.

Take care when setting physical standards. The Supreme Court made clear in its three recent decisions that employers have the right to set certain physical standards for employment. For example, it might be permissible for a baseball team to decide to hire only hitters with the superior eyesight of Boston's legendary slugger Ted Williams, if superior eyesight would translate into superior performance at the plate.

However, this doesn't mean that employers have license to impose any physical requirements they want. The requirements must be related to the job. In other words, would the physical requirements enable the employee to better perform the essential functions of the job? If not, the restrictions probably violate the ADA. The lower courts undoubtedly will further delineate the circumstances under which physical standards are permissible, so make sure you keep up with future court decisions on this issue.

In a related point, some industries are subject to government regulations that require employees to meet certain physical requirements. This was certainly true in the Murphy case, where UPS fired the driver who failed to meet DOT requirements.

Prior to the Murphy decision, employers faced a potential legal dilemma: They had to choose between risking liability for violating DOT requirements or the ADA. However, the Supreme Court ruled that it is reasonable for employers to adhere to physical requirements mandated by federal regulations. Thus, employers likely will not violate the ADA by requiring employees or applicants to meet legally mandated physical requirements.

In fact, in Kirkingburg, the court held that the employer could require an applicant to meet physical requirements imposed by applicable federal safety regulations-even though the applicant had obtained a special exemption from the standard. However, that decision was based on a legal analysis of very specific regulations and may not have widespread applicability. Before making a similar decision, consult with an attorney.

Consider the negative effects of medicine. In its recent decisions, the Supreme Court ruled that both positive and negative effects of mitigating measures must be considered when evaluating an employee's disability under the ADA. In other words, medications or other medical aids may not only prevent someone from being disabled, they may also cause a disability.

For example, suppose someone has been diagnosed with a very early stage of cancer. At this point, the individual feels fine and is not limited in any major life activity. Her medical condition has not yet caused her to be disabled.

Now, assume this same individual undergoes an aggressive course of chemotherapy to treat the cancer. Also assume that, due to the chemotherapy's severe negative side effects, the person becomes limited in such major life activities as working or caring for herself. This person is now disabled under the ADA - not because of the effects of the cancer, but because of the effects of the treatment for cancer.

Be wary of partially successful mitigating measures. Some individuals may employ mitigating measures that improve, but do not completely ameliorate, their medical conditions. If such individuals remain substantially limited in one or more major life activities, despite their improved condition, they are still disabled under the law.

For example, assume that an employee with a missing leg wears a prosthesis that enables him to walk. However, even with the prosthesis, the individual walks only with great effort and cannot go very far without resting. Despite the mitigating effects of the prosthesis, this individual is probably still substantially limited in the major life activity of Walking. Such an individual is disabled under the ADA and is subject to the act's protections.

If such an employee requests a reasonable accommodation, the employer should make further inquiries and obtain medical information regarding whether the individual is, in fact, disabled. If so, the employee is entitled to all of the ADA's protections.

Before talking to a medical professional about an employee, though, don't forget to get the employee to sign a medical authorization allowing you to do so.

Watch out for issues left unresolved by these cases. As lower courts and businesses begin applying the rulings in these cases to real-life situations, they will need to continue addressing some important unresolved issues.

For example, what about people who simply refuse to take medication or use other mitigating measures that would correct their medical conditions? Can they be considered disabled under the law if they are, in effect, impaired as a matter of choice? One would hope that individuals cannot voluntarily make themselves disabled under the ADA and thus entitled to the law's protection.

The EEOC has split the baby on this issue. In its recent guidance on reasonable accommodation, the agency declares that an employee's failure to take her medication does not relieve the employer of its duty to provide a reasonable accommodation that would enable her to perform the essential functions of her job.

On the other hand, according to the EEOC, an employee who fails to take beneficial medicine that would enable her to do her job, and who cannot be reasonably accommodated, might not be considered "qualified" for the job. In such a case, the ADA would not protect her.

Until the courts resolve this issue, an employer's safest course is to make reasonable attempts to accommodate employees who refuse to take their medicine.

In a related point, an employer has no obligation to monitor whether employees take their medication as prescribed, according to the EEOC guidance on reasonable accommodation. In fact, there is a good reason not to check on employees who take medication: Doing so may lead employees to believe that you perceive them as being disabled. This may increase your chances of being sued if you take any adverse action against them.

From recent experience in other ADA cases, we know that lower courts may come to different conclusions on the unresolved issues discussed above, as well as others that will undoubtedly arise. At the very least, watch for decisions by courts within your jurisdiction. When in doubt, consult with legal counsel before taking any adverse action against an employee who uses or should be using mitigating measures for a physical or mental impairment.

Legal Background

All cases brought under the Americans with Disabilities Act (ADA) involve the initial question of whether the person who filed the suit is disabled within the meaning of the statute.

Under the ADA, individuals are disabled whenever any of the following statements applies.

* They have a history of impairment. (Some people have conditions that flare up from time to time, then subside. Such people are protected even when the condition is not active.)

* They do not actually have a disability that is otherwise covered by the law but are treated - or "regarded" - by their employers as though they do.

* They suffer from a physical or mental impairment that substantially limits one or more major life activities, such as caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, learning and working.

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.

According to the Equal Employment Opportunity Commission, whether an impairment is substantially limiting depends on factors such as the impairment's nature and severity, duration or expected duration and actual long-term impact.

Timothy S. Bland, SPHR, is a management attorney in the Memphis office of Ford and Harrison LLP. He is the Legislative Affairs Chair for SHRM-Memphis and is a member of SHRM's national Workplace Diversity Committee. He, along with his colleagues Peter Petesch, Thomas Walsh, Jr. and David Harvey, drafted an amicus brief for SHRM in the Sutton and Murphy cases.

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