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Illness controlled by medicine can still be a ‘disability’

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in Discrimination and Harassment,Employment Law,HR Management,Human Resources

Issue: Whether employees are considered "disabled" if their ailments can be kept in check by corrective treatments.

Risk: Many employers wrongly assume that corrective treatments wipe out an employee's ADA protection.

Action: Treat every ADA claim separately. To decide ADA eligibility, focus on the employee's ability after the corrective measures.

Here's a vexing question many HR professionals face: Are employees considered "disabled" under the Americans with Disabilities Act (ADA) even if their ailments are controlled by medication or some other corrective treatments? The answer: "Maybe." You must look at each person's situation separately.

ADA defines a disability as any physical or mental impairment that limits one or more major life activity. To determine whether an employee falls under the law, you must consider the effects of any mitigating measure the person uses to reduce or eliminate those impairments, such as medication, eyeglasses, canes and hearing aids.

The deciding factor: whether the employee, even with the corrective treatment, is still substantially limited in one life activity. In some cases, for example, medication may partially, but not completely, control the employee's condition. Or it may introduce side effects.

That's why it's smart to treat every ADA claim on a case-by-case basis. Focus on the employee's ability to do the job after taking the corrective measures. While a court deemed the employee in the following case not to be disabled because her medication controlled her disease, you may not be so lucky. When in doubt, consult your employment attorney.

Recent case: An office worker sued her employer, alleging that it violated disability discrimination law by refusing to let her telecommute as a reasonable accommodation for hypertension. The employee claimed that working in the office made her high blood pressure worse. She acknowledged that medication helped control her condition while at the office.

The court sided with the company, saying the employee wasn't "disabled" because medication largely corrected her impairment and no other illnesses prevented her from working on site. (Coleman-Adebayo v. Leavitt, No. 03-2428, D.D.C., 2004)

Online resources: Whether a person has an official disability, the EEOC says, "is determined by taking into account the positive and negative effects of mitigating measures used by the individual." For more, see www.eeoc.gov/press/6-8-00.html and www.eeoc.gov/policy/docs/902sum.html.

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