January 23, 2020, Vol. 11
by Marc Campsen

ADA: The Basics For Employers

The Americans with Disability Act (“ADA”) prohibits employers from discriminating against employees on the basis of disability. Not every disability qualifies as a disability under the ADA and simply obtaining a diagnosis of a disability is not sufficient. Rather, to qualify for protections under the ADA, a disability must be a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Major life activities as defined under the ADA touch on a broad range of activities including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

Whether an individual is disabled within the meaning of the ADA is determined on a case-by-case basis. Courts generally agree that an individual cannot be per se disabled under the ADA. If an employee has a qualifying disability under the ADA, generally, an employer must provide a reasonable accommodation to assist the employee in continuing to work. Discrimination claims often arise when an employer opts to terminate an employee rather than provide an accommodation, if possible.

An employer can run afoul of the ADA – in addition to discrimination claims – by failing to engage in what is known as the “interactive process” to determine whether a reasonable accommodation is available. The interactive process is triggered when the employer learns an employee is seeking a reasonable accommodation related to the employee’s disability. Typically, all the interactive process requires is that an employer make a good-faith effort to provide a reasonable accommodation. Examples include, but are not limited to:

• meet with the employee
• request information about the condition and what limitations the employee has
• ask the employee what he or she specifically wants
• show some sign of having considered the employee’s request
• offer and discuss available alternative accommodations when the initial request is too burdensome

The employee must also engage in the interactive process in good faith. Generally, an employer will not be liable for failure to engage in the interactive process if after conferring with the employee to find a possible reasonable accommodation, the employee fails to supply information that the employer needs to evaluate the accommodation request or does not answer the employer’s inquiries for more detailed proposals. For example, when the need for an accommodation is not obvious, an employer may require the employee to provide medical documentation of the disability and the need for the type of accommodation requested. The philosophy beyond this reasoning is that an employer needs information about the nature of the employee’s disability and the requested accommodation, which is information typically possessed only by the employee or the employee’s physician. If the employee does not engage the employer in the interactive process, an employer is not required to continue the process and will not be liable for not providing an accommodation.

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About The Author:

Marc A. Campsen is an attorney at Wright, Constable & Skeen, LLP, where he focuses his practice primarily on litigating employment and business law matters. He is recognized as a Maryland Super Lawyer.

DISCLAIMER: The materials available on this blog are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem.

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