A Battle of Wills

New guidelines show that the EEOC and the Supreme Court continue to wrestle over the ADA--leaving employers stuck in the middle.

Over the last two years, the U.S. Supreme Court has issued several rulings that sought to explain who is entitled to the protection of the Americans with Disabilities Act (ADA). In some cases, the court's rulings vehemently disagreed with the legal interpretations of the Equal Employment Opportunity Commission (EEOC).

Now the EEOC is striking back with a new set of interpretations. In early October the agency released internal guidance that encourages its inspectors to interpret the law in the broadest possible manner. These instructions essentially cover three legal questions:

* What types of negative effects from medication or other measures used to treat a condition can render an employee disabled, as far as the ADA is concerned?

* Are employees who state that they are totally disabled--and, therefore, qualified for disability benefits--protected by the ADA?

* Can employers require employees to meet physical requirements mandated by a federal safety regulation, even if they have an exemption?

How will these guidelines affect the way you do your job? Ultimately, they may be rejected by the federal courts. But until they are, employers need to understand them and take them seriously.

Here is a look at what the guidance reveals about the EEOC's take on the law.

Negative Effects Of Mitigating Measures

Some employees are able to control their medical conditions with medication, eyeglasses, prosthetics or other mitigating measures. Are such employees covered by the ADA?

The answer to that question was a resounding "yes," according to the EEOC. Under the agency's view, for example, an epileptic who could fully control his condition with medication would be considered disabled under the law, and a person with severe myopia who could see normally with corrective lenses would be protected.

This past June, however, the Supreme Court rejected the EEOC's position. In three separate rulings, the high court ruled that, in general, individuals who can function normally with mitigating measures are not protected by the ADA. What's more, the court seemed to go out of its way to criticize the EEOC's approach, almost in the manner of an angry parent scolding an errant child.

However, the court also ruled that the negative effects of a mitigating measure may render someone disabled under the law. (This agrees with an argument SHRM urged in its brief in these Supreme Court cases.) (Sutton v. United Air Lines, 119 S.Ct. 2139 (1999); Murphy v. United Parcel Service, 119 S.Ct. 2133 (1999); and Albertsons v. Kirkingburg, 119 S.Ct. 2162 (1999)).

Apparently stung by the Supreme Court's s criticism, the EEOC has struggled mightily to put the best spin possible on the Supreme Court's rulings in these decisions. As a result, the agency's new guidelines take an expansive view of the second part of the court's decision by providing a new list of activities that constitute major life activities.

According to the EEOC, employees are protected by the ADA if they can demonstrate that a medication or other mitigating measure causes them to be substantially limited in any of the following ways:

Caring for oneself. If medication or a prosthetic device causes extreme fatigue, this may substantially limit an individual's ability to care for himself or herself.

In its guidance, the EEOC goes so far as to state that fear from past medical experiences may qualify an individual for ADA coverage. For example, an epileptic individual who was taunted by strangers after having public seizures may not be able to go out alone to buy groceries. This person may require some one familiar with his epilepsy to accompany him and, in the EEOC's view, would be substantially limited in a major life activity.

Eating. According to the EEOC, if medication or other mitigating measures impose substantial dietary restrictions on an individual, that person may be deemed substantially limited. Likewise, certain medications may cause severe nausea, which in turn will affect the individual's ability to eat and may place that person under the umbrella of the ADA.

It is not clear how far the EEOC intends to stretch this interpretation of the law. If an otherwise functional person has a physical condition that warrants a restricted diet--such as avoiding sugar or fatty foods--does this mean that these restrictions are enough for the EEOC to contend that the individual is "substantially limited?" Until either the courts or the EEOC further clarify this, human resource professionals should consult legal counsel if faced with such a situation.

Sleeping. Some medications cause extreme drowsiness. Some may cause insomnia. In either case, individuals using such medication could be substantially limited in a major life activity, according to the EEOC guidelines.

The guidelines do not state exactly when drowsiness or insomnia will constitute a disability. Until this issue is more clearly defined by the EEOC or the courts, employers should play it conservatively and seek legal advice any time an employee complains of such problems.

Thinking, concentrating and other cognitive functions. The guidelines state that individuals may be protected by the law if the medication they take to control a condition causes them to expend "greater effort" because it makes them groggy, disoriented or slow. The guidelines specifically state that drugs used to treat psychiatric illnesses and epilepsy may qualify.

Unfortunately, the guidelines do not state how groggy, disoriented or slow the medication must make an individual to constitute a disability. Based on the EEOC's past practice, the best assumption is that even fairly minor problems will be considered disabling.

Reproduction. Many medications prescribed to control seizures or psychiatric illnesses can cause birth defects. In the EEOC's view, individual's taking such medications are "substantially limited" in the major life activity of reproduction.

Walking, standing and lifting. Even if an individual can successfully use a prosthetic foot, leg, arm or hand, that person may qualify for ADA coverage. The EEOC reasons that such individuals may experience problems in their remaining limbs resulting from over-use to compensate for the missing limb.

Working. Previously, the EEOC held that working is a major life activity and that limitations on the ability to work might qualify for ADA protection. In Sutton, the Supreme Court strongly implied that working might not be a major life activity. However, because that issue was not part of the case, the court did not make a formal determination.

Under the new guidelines, the EEOC clearly demonstrates that it still adheres to its position. The new guidelines also specifically instruct EEOC investigators to determine whether the effects of medication substantially limit the individual's ability to work. If so, the EEOC will deem him or her disabled under the ADA.

To demonstrate how broadly the EEOC interprets substantial limitations on major life activities, the guidelines state that someone who cannot tolerate stressful working conditions is "substantially limited" in the major life activity of working.

The EEOC's interpretations beg the question: If individuals have physical or mental impairments and use medications or treatments that cause limitations or side-effects, will the EEOC try to stretch any limitation into a substantial limitation? Human resource professionals should carefully watch for future EEOC interpretations and court decisions to see how this issue is ultimately resolved.

Applications for Disability Benefits

To receive certain benefits, such as Social Security Disability Insurance (SSDI), employees must state that they are totally disabled and unable to work. This appears to disqualify these same employees from ADA protection, which applies only to employees who are able to work (with or without reasonable accommodation, of course).

The EEOC has taken the view that individuals who apply for SSDI bene fits are not automatically denied protection under the ADA. This past May, in Cleveland v. Policy Management Systems Corp., (119 S.Ct. 1597 (1999)), the high court agreed.

The court provided examples of three situations in which an SSDI and ADA claim are not mutually exclusive:

* When determining benefits eligibility, the Social Security Administration (SSA) does not consider whether a person could work if provided with reasonable accommodation.

* Under SSA rules, persons with certain medical impairments are automatically granted benefits--whether or not they are able to work. So, such persons may be capable of performing the essential functions of their jobs despite their medical conditions.

* A person's condition may change over time. Individuals may truthfully state they are unable to work when they apply for benefits, but may be able to work at a later date.

The Cleveland ruling applied only to SSDI benefits. However, the EEOC's guidelines expand the scope of the ruling by stating that this same rationale applies to other types of disability benefits, such as long term disability benefits or workers' compensation. Clearly, this greatly increases the likelihood that HR professionals will encounter such a claim.

The implication is that human resource professionals cannot assume that their obligations to reasonably accommodate an employee end simply because the employee has applied for some type of disability benefits. Rather, human resource managers need to make their own independent assessment, based on objective medical evidence, of whether any reasonable accommodations are available that would enable the employee to work.

Federal Safety Regulations

Can employers legally require employees to meet the physical mandates of a regulatory safety standard--even if the employee has a waiver of the standard from the government under an experimental program? According to the Supreme Court's ruling in AlbertSons V. Kirkingburg (119 S.Ct. 2162 (1999)), the answer is "yes."

However, the EEOC's new guidelines make clear that the agency intends to limit the Kirkingburg ruling to its specific facts. Apparently, the EEOC will allow employers to reject such waivers only when they are part of an experimental program.

Where Do We Go from Here?

The Supreme Court's landmark holdings placed reasonable restraints on ADA coverage and gave employers cause to breathe easier. However, the EEOC has now taken steps to stretch the coverage of the ADA far beyond the 43 million Americans that Congress intended to protect when it introduced the law. As a result, the controversy over who is protected under the ADA is far from over.

Whether the EEOC is correct in its broad interpretation will likely be the source of significant future litigation in the courts. Nonetheless, since the EEOC will find employers in violation of the law if they do not comply with the instructions, human resource professionals need to familiarize themselves with them.

In other words, when in doubt, don't "bet the farm" on ultimately winning in court on the issue of ADA coverage.

Timothy S. Bland and Peter J. Petesch are colleagues at Ford & Harrison LLP, a nationwide law firm representing management in employment matters. Tim is a member of SHRM's national Diversity Committee, and Tim and Peter represented SHRM in its brief in last summer's landmark Supreme Court ADA decisions.

COPYRIGHT 1999 Society for Human Resource Management
COPYRIGHT 2004 Gale Group