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Employers with fifteen or more employees are governed by federal regulations that took effect on May 24, 2011 to implement the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).¹ The new regulations and the slightly older statute expand the circumstances in which an employer must provide reasonable accommodation for an employee’s physical or mental condition. This makes it even more important that managers (including Human Resources professionals) think through in advance not only how they will respond to an employee’s physical or mental impairments, but also how they will defend their actions later, if challenged in a court or government agency.

Deciding whether to "reasonably accommodate" an employee’s disabling condition can be a complex responsibility. In few other areas of employment law are the rules as fluid and dependent on factual and procedural nuance. And while the direct involvement of an experienced employment attorney often is essential, managers need to have their own understanding of the overall process. They thus may benefit from the following step-by-step methodology when crafting how the employer will respond to an employee’s impairments.

Step 1. Anticipate at the outset that you later may have to prove the reasonableness of the actions you take.

If challenged by a claim in a government agency or court, the employer will have to prove each part of its overall response to an employee’s disability. Managers therefore need to plan at the outset for testimony that could be required years later concerning the timing and substance of their actions. It is at this initial stage that the assistance of an employment law attorney may be most useful. One of the points that you can expect to cover with your attorney is that accurate, detailed, and contemporaneous documentation of management’s response (including each of the steps outlined below) is essential. Without solid documentation of pertinent facts and the actions taken by management in response, incorrect allegations by an employee-turned-plaintiff can be difficult to disprove.

Step 2. Determine whether the employee has a “disability” based on the “actual disability” or “record of” parts of the statutory definition.

“Disability” is statutorily defined as either (a) “a physical or mental impairment that substantially limits one or more major life activities,” (b) “a record of such impairment,” or (c) “being regarded as having such impairment.” 42 U.S.C. § 12102(1). The employer’s obligation to provide reasonable accommodation extends only to those disabilities that satisfy definition (a) or definition (b) – i.e., the “actual disability ” or “record of” definitions. An employer has no obligation to provide reasonable accommodation to an employee meeting only the “regarded as” definition.

Mental or physical conditions are “actual disabilities” if they “substantially limit” anything considered by the law to be a “major life activity.” Because of the ADAAA and the new regulations, “major life activity” has to be construed expansively. A non-exhaustive list of “major life activities” now includes (a) caring for oneself, (b) performing manual tasks, (c) seeing, (d) hearing, (e) eating, (f) sleeping, (g) walking, (h) standing, (i) lifting, (j) bending, (k) speaking, (l) breathing, (m) learning, (n) reading, (o) concentrating, (p) thinking, (q) communicating, (r) working, (s) operating major bodily functions, (t) sitting, (u) reaching, and (v) interacting with others.

The ADAAA and the new regulations also require that the phrase “substantially limits” be construed expansively. A “substantial” limitation does not have to be “significant” or “severe.” If impairment is episodic or in remission, then the condition is a disability if it would substantially limit a major life activity when active. Medical or scientific evidence typically will not be required to make the necessary assessment.

And to ensure that no one misunderstands the more pro-employee direction now being taken by the law, the new regulations expressly set forth an “important signal to both lawyers and courts.” Parties now are “to spend less time and energy on the minutia of an individual’s impairment, and more time and energy on the merits of the case – including whether discrimination occurred because of a disability, whether an individual was qualified for a job …, and whether a reasonable accommodation was called for.”

Thus, under the new rules, virtually all mental or physical impairments will be disabilities, virtually all employees with such impairments will have special protection, and in only the rarest of cases will an employer be able to defend by arguing that an employee with such impairment was not disabled.²

Step 3. Determine whether the disabled employee is a “qualified individual” within the meaning of the law.

Under federal law, only “qualified individuals” have protection from disability discrimination. An employee is a “qualified individual” if he or she (a) possesses the requisite skill, experience, education, and other job-related requirements for the position, and (b) is able to perform the "essential functions" of his or her position with or without "reasonable accommodation."³

A manager's determination about whether an employee can perform the "essential functions" with or without "reasonable accommodation" must be supported by evidence that will withstand the employee's challenge, and it should reflect understandings such as the following:

• Not every function of a job is "essential." "Essential" functions are those that are fundamental to the particular position, not those that are merely marginal.

• The evidence proving whether a particular "function" is "essential" can vary. Depending on circumstances, it could include, but not be limited to, the employer’s judgment, the amount of time on the job performing that particular function, written job descriptions prepared before advertising or interviewing applicants for the job,⁴ work experience of present or past incumbents in the job, and the work experience of incumbents in similar positions.

Step 4. Engage in an “interactive process” – i.e., have a dialogue with any “qualified individual” who meets the “actual disability” or “record of” definitions of disability; the purpose of the dialogue is to determine whether a reasonable accommodation can be provided to the individual’s known physical or mental limitations.

As noted above, the employer does not have to provide reasonable accommodation to an employee who meets merely the “regarded as” definition of disability. But otherwise, an employer must provide reasonable accommodation to the known physical or mental limitations of a disabled employee or applicant who is a “qualified individual,” unless there is undue hardship.

The nature of the reasonable accommodation can vary. It might include actions such as making existing facilities readily accessible to and usable by disabled individuals, job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, and adjustment or modification of examinations, training materials, or policies, or others.

And at this point, procedure can be crucially important. The employer should engage the disabled employee in an informal, interactive process -- a dialogue -- not only to identify the precise limitations resulting from the disability but also to weigh the potential reasonable accommodations that could overcome those limitations. Documentation of this interactive process is essential. Whether a reasonable accommodation exists (or whether there is undue hardship) may be a close call in a contested case. And because those decisions are likely to be subjective, reasonable people (i.e., the affected employee and/or a judge) might disagree about whether the decisions were properly grounded. When the employer has substantial documentation showing how hard management worked to engage the disabled employee in the interactive process, courts are more prone to conclude that the employer behaved reasonably in general.

Step 5. Determine whether reasonable accommodation can be provided without undue hardship.

It is unlawful for an employer to fail to provide reasonable accommodation to an employee or an applicant who is a qualified individual with a disability, unless the accommodation would impose “undue hardship” on the operation of the employer’s business.

“Undue hardship” is defined as significant difficulty or expense when considered in light of factors such as (a) nature and cost of the accommodation, (b) the overall financial resources and size of the facility involved in the provision of the reasonable accommodation, and (c) the overall financial resources and size of the employer, and (d) the impact of the accommodation on the facility and on other employees.

Thus, depending on the circumstances, it may be hard for a well-endowed employer to argue that cost alone constitutes an undue hardship sufficient to excuse a lack of reasonable accommodation.

Step 6. Take affirmative steps to preserve your evidence.

This last step is little more than the logical extension of the first step. Particularly when an accommodation is not provided or does not satisfy the employee, the employer’s documentation needs to be factual, accurate, and complete. In a hotly contested case, a court might not know with absolute confidence whether any purported accommodation was “reasonable,” or whether a hardship actually was “undue,” but it is more likely to uphold the employer’s determinations in those areas if the reasonableness of management’s decision-making process is straightforward and well-documented.

We thus end about where we started, with the observation that deciding whether to reasonably accommodate an arguably disabled employee can be one of the most complex responsibilities a manager will face. Few areas more frequently will demand an experienced attorney's advice.

¹ On July 26, 1990, President George H. W. Bush signed into law the Americans with Disabilities Act of 1990 (ADA). Title I of the ADA thus established federal disability rules applicable to employers with fifteen or more employees. The ADAAA amended those statutory rules. The new regulations, published by the Equal Employment Opportunity Commission, implement the ADAAA and are found at 29 C.F.R. Part 1630 and on the EEOC’s website.

² There are, however, notable statutory exceptions. “[H]omosexuality and bisexuality are not impairments.” And the following are not disabilities even if they are substantially limiting impairments: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs. See 42 U.S.C. § 12211.

³ But “a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, when the [employer] acts on the basis of such use.” 42 U.S.C. § 12114(a).

⁴ Written position descriptions can be particularly helpful in the defense of an employer’s actions. For purposes of determining whether an employee is a “qualified individual” who is protected by disability discrimination laws, “consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8).

This advisory was prepared by David C. Henderson, a member of the Labor, Employment and Benefits practice group at Nutter McClennen & Fish LLP. For more information, please contact David at 617.439.2345 or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.