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Apply common sense in determining ‘Substantial impairment’

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in Employment Law,HR Management,Human Resources

We’re becoming a nation of complainers, and the workplace is no exception. Consider the growing number of employees who claim they have a real or imagined disability—and want an accommodation. Employers can’t afford to have a workplace full of “accommodated” employees, each with his or her own set of special privileges, such as altered shifts, extra breaks and other perks.

On the other hand, the ADA protects genuinely disabled employees from discrimination and entitles them to reasonable accommodations. It’s up to HR professionals to make the call on who is disabled and who isn’t.
Use this guideline to help make appropriate disability decisions: Does the condition substantially impair a major life function, like walking, talking or working?

To answer the question, compare the limitation to a hypothetical “average” person’s ability to perform the same function. For example, millions of Americans are overweight and have poor vision. That doesn’t mean every overweight person who can’t stand for a long time, or everyone who wears glasses, is disabled.

You must consider the severity of the claimed disability. If an employee can stand for only a few minutes at a time, he or she may be substantially impaired; but if the person just has to rest every hour, probably not.

Recent case: John Williams broke his back. He was off work for almost three months before returning to a light-duty job. He complained that he couldn’t stand for more than an hour without pain and needed to lean on a hard surface to put on his pants.

When his employer fired him for gossiping, Williams said he had really been fired because he was disabled. But the court disagreed. It compared Williams to other average Americans who can’t stand for an hour—including the millions who are overweight—and decided his limitation didn’t amount to a substantial one. It tossed out the case. (Williams v. Excel Foundry & Machine, No. 06-1863, 7th Cir., 2007)

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