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Service-related health problem seems minor? Employee might still have ADA disability claim

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in Discrimination and Harassment,Human Resources

Ordinarily, the ADA doesn’t protect employees who have temporary physical problems that don’t last long or seriously interfere with their lives. But ailments and conditions that last indefinitely are another matter.

Don’t assume that even minor-sounding problems aren’t covered by the ADA and don’t qualify for reasonable accommodations.

That’s especially true for a veteran who the Department of Veterans Affairs (VA) has rated as partially disabled by service-related injuries. It seems a service disability with a rating as low as 10% can sometimes mean the vet is disabled within the meaning of the ADA and other laws such as the Rehabilitation Act.

Recent case: Matthew is a military veteran who worked as a surgical anesthesiologist at the Sacramento VA Medical Center. When he was on active duty years ago, he injured his knee. Almost two decades later, he had such knee problems that he asked the VA for partial disability payments.

The VA assessed his disability at 10% impairment and awarded benefits accordingly. Meanwhile, he kept working for the VA hospital in the operating room and as a manager. Then, while a patient was under anesthesia, he squatted down under the operating table to reach a catheter and injured his other knee.

Matthew took medical leave for knee surgery and returned to work a few weeks later. He claimed that after his return, he had to work in a hostile environment as supervisors, co-workers and subordinates blamed him for things that went wrong during his absence. Eventually, the VA decided not to renew his contract.

He sued, alleging that he had been driven out because he is disabled and took leave for surgery, both violations of the ADA.

The VA argued that although it had certified him as 10% disabled, that wasn’t enough to substantially impair a major life activity. Matthew, though, claimed his old knee problems prevented him from either running or squatting and that these were important limitations, especially for a doctor who must stand for many hours and bend and squat while checking medical equipment and patient responses during surgery.

The court reviewed the current EEOC guidance and concluded that even minor disabilities may substantially impair major life activities—they no longer have to in­­ter­­fere with something that is central to most people’s lives. And in this case, it was clear that Mat­­thew’s job in­­volved squatting, since that’s how he injured his second knee at work while administering anesthesia in the operating room.

The court said he should have a chance to take the case to trial. Now a jury will decide whether his disability was a factor in the VA’s decision not to renew his contract. (Bonzani v. Shinseki, No. 2:11-CV-00007, ED CA, 2013)

Final note: Don’t rely strictly on a number when deciding whether a returning service member is entitled to reasonable accommodations. The fact is, even a minor disability rating can qualify the employee as disabled.

Always engage in the interactive accommodations process when an employee says he’s disabled. That includes looking at exactly what the employee’s limitations are. Remem­­ber, to receive a service-related disability rating, the impairment has to be permanent. That means the em­­ployee has already cleared one hurdle in determining an ADA disability.

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