Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. She is also the coauthor of the American Bar Association’s bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."

The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the workforce—from boardroom executives to managers and supervisors and to hourly employees in union and non-union environments.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

If you have an employee who seems constantly exhausted, take note: He or she may suffer from chronic fatigue syndrome (CFS). And under the newly revised Americans with Disabilities Act (ADA), that person could be deemed “disabled” and entitled to reasonable work accommodations.

Case in Point: Lorin Netterville was diagnosed with CFS in the late 1980s, but she had lived symptom-free for many years. That ended soon after she began work as an administrative aide for Chevron. She suffered a relapse of her CFS, whose symptoms include joint pain, inability to concentrate and excessive fatigue after ordinary tasks.

Netterville asked for two accommodations. First, she asked for leave, which was granted. Second, she asked for permission to take more frequent breaks and to alternate job tasks. Chevron never responded to the second request.
Eventually, Netterville was terminated for allegedly misrepresenting her medical history on a pre-hire questionnaire because she failed to state that she’d been diagnosed with CFS.

Netterville sued Chevron for violating her ADA rights. The key question was whether or not Netterville was suffering an ADA-qualifying disability at the time of her firing. Employees are covered under the ADA if they have a physical or mental impairment that “substantially limits” one or more major life activities. The new ADA Amendments Act, which took effect on Jan. 1, broadened the meaning of “substantially limits” and, thus, more Americans are now eligible for ADA accommodations at their jobs.

The lower court dismissed her claim, agreeing with Chevron that Netterville was not protected under the ADA because she was in remission at the time. She then brought her case to 5th Circuit appeals court. The ruling could be a harbinger for ADA cases going forward. (EEOC v. Chevron Phillips Chem. Co., 5th Cir., 6/5/09)

What happened next and what lessons can be learned?

The court reversed the lower court ruling and sided with Netterville. It said that although “temporary, non-chronic impairments,” such as broken arms, are not ADA-covered disabilities, “the consensus of the medical community is that CFS is a chronic disease of indefinite duration for which there is no known cure.”

The court added, “As the Supreme Court has noted in the context of evaluating whether a limitation is substantial, an impairment does not have to be completely disabling to qualify under the ADA. Moreover, the assessment of whether an individual is disabled is made not just with respect to the workplace, but also by looking at the effect of the impairment on the individual's entire life.

3 lessons learned … without going to court

1. Don’t be quick to fire.  Courts have a “retaliation stop watch.” They’ll scrutinize how much time has lapsed between when an employee asks for a reasonable accommodation and when an adverse employment action occurs.

2. Engage in the interactive process. The court noted that the employer here blew off the employee and did not respond to the second request. Always communicate with an employee who makes a request for an accommodation, then document the discussion.

3. Understand the new ADA changes. The new ADA Amendments Act says that employees with medical conditions in remission may be covered under the ADA. Don’t be a test case for new laws and regulations. Proactive legal advice is always cheaper than reactively defending a lawsuit as in this case. For more on the new law, see our collection of articles on the new law, plus the text of the law itself.