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Assist ailing employees without fear of triggering ADA

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in Discrimination and Harassment,Firing,Human Resources

Issue: Who is considered "disabled" under ADA's definition?

Risk: Employees earn ADA protection if you regard them as disabled, even if their condition doesn't rise to the law's definition of disabled.

Action: Don't be afraid to help ailing employees; your well-meaning actions won't always mean you view the person as disabled.

The Americans with Disabilities Act's so-called "regarded-as" provision says that, if you or your supervisors treat an employee as having a "disability", even if his or her condition doesn't meet the law's strict definition, your actions could extend the employee protection under the law.

But what if you offer accommodations regardless of whether the person's ailment is truly a disability? Your efforts are simply a kind gesture. Would those efforts automatically mean that you regard the employee to be disabled and, therefore, bind you to ADA's requirements?

No. As a recent court case shows, not every attempt to assist employees with their medical impairments constitutes evidence that you "regarded" the employee as disabled.

To show that you don't view an employee's condition as a "disability," document the limited ways in which an employee is impaired. That creates evidence that the employee isn't "substantially limited in a major life activity" (ADA's definition of "disabled"), but simply limited in one aspect of his or her job performance. Also, avoid using the word "disability" in your documentation. Instead, use "medical impairment."

Recent case: After her firing, a gym teacher sued the school district, arguing that the employer had made efforts to accommodate her arthritis (with work breaks, chairs and other assistance) and, thus considered her disabled. But she lost her case. A federal appeals court said the school personnel's accommodation efforts did not automatically establish that they believed the teacher was disabled within ADA's legal meaning.

"Decent managers," the court said, "try to help employees cope with declining health without knowing or caring whether an employee fits the description in the federal statute." (Cigan v. Chippewa Falls School District, No. 03-4034, 7th Cir., 2004)

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