The ABCs of the ADA Cassandra B. Meynard, J.D. The Americans with Disabilities Act (ADA) applies to all employers with over 15 employees and protects employees from discrimination based on disability In much the same way that TitleVII protects employees from discrimination based on sex, race, religion, or national origin. Under the ADA, an individual Is con sidered to have a "disability" if (s)he either (1) has a physical or mental impairment which substantially limits one or more major life activities, (2) has a record of such impairment, or (3) is regarded by the covered entity as hav ing such impairment. In order to avoid disability discrimina tion suits, employers must understand their obligations, update their policies, and train their managers and HR staff about the ADA. This is especially impor tant because in enacting the law. Congress instructed that courts must no longerfocus on whether an employee is "disabled," but on whether the "employer Is complying with Its obligations under the law." What Is a "Disability"? Adisability is a flexible term under the ADA and is defined broadly. • Physical/Mental Impairment. Under the ADA, "physical or mental impair ments" include any physical condition affecting the body's major systems, for example, the neurological, muscu- loskeletal, or special sense organs. It also covers psychological conditions such as depression, mental illness. An impair ment may be episodic or in remission, yet still be considered an impairment under the ADA. Similarly, an Impairment likediabetes is stillan impairment, even if it is controlled by medicine. • Substantially Limits. An impairment is a disability ifit substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. • Major Life Activities. The ADA offers what is described as a "non-exhaustive" list of'major life activities"which include reading, learning, working, "communi- cating,""concentrating,""thinking,""caring for oneself" walking, eating and sleep ing. As a second category of'major life activities" includes impairments that interfere with the "major bodily systems or organs" (i.e., neurological, reproduc tive, digestive, respiratory, circulatory). An individual whose impairment sub- MESCHr CLARK^ ROTHSCHILDp^. ATTORNEYS stantially limits a major life activity need not demonstrate a limitation in the abil ity to perform activities of central impor tance to daily life. For example,someone with a 20-pound lifting restriction need not also show that he is unable to per form activities of daily living that require lifting in order to be considered substan tially limited. An impairment that "sub stantially limits" one major life activity need not limit other major life activities in order to be considered a disability. Protection for Employees "Regarded As" Disabled In order to qualify as "regarded as dis abled" under the ADA, an Individual must only prove that his or her employ SVir»#»Retailincp today JUL-AUGU Cassandra B. Meynard er took discriminatory action against him or her because the employer thought the employee had a disability. What the ADA Means For Employers The implications of the ADA are pro found for employers. Under the ADA, one can argue that anyone treated for a chronic condition (or one that risks returning) will be forever "disabled"- even ifthat person has no signs or symp toms. In fact, because of the natural aging process, most people will develop a condition at some point that will be considered a disability under the ADA. Combining the ADA with the Family Medical Leave Act ("FMLA"), every employee who has a"disability"will now likely also qualify for FMLA leave. Employers may see more demands for intermittent FMLA leave, as well as more employees seeking longer periods of time off. Remember, use of FMLA leave is not a basis to discipline an employee for poor attendance. What Accommodations Must Be Provided? The ADA clarifies that only individuals who meet the first (actual disability) and second (record of a disability) parts of the definition are entitled to accommo dations. Individuals who only meet the third part (regarded as) are not entitled to accommodations. Employers should be mindful that a reasonable accommodation does not have to be tied to the major life activity that established that the employee has a disability. For example, a person with cancer may establish that he has a dis ability because he Is substantially limited