Expanded ADA disabilities coverage may affect drug testing
by Kerry Langan, Esq.
We all anticipated that the Americans with Disabilities Act Amendments Act (ADAAA) would make it easier for certain medical conditions to qualify as protected disabilities. That was, after all, the point of the law.
Earlier this year, the EEOC provided an example of just how well the ADAAA may do that. It issued an informal discussion letter noting that it will now be easier for individuals with paruresis—commonly known as “shy bladder syndrome”—to meet the statutorily revised definition of a disability.
If you administer urinalysis drug tests to employees or job applicants, that could force you to change your procedures or adopt a different kind of test.
This informal discussion letter is a clear reminder that employers should not make assumptions about whether a particular condition qualifies as a disability.
Definition of ‘disability’
Paruresis is the inability to urinate in public restrooms or in close proximity to other people, or the fear of being unable to do so. Shy bladder syndrome is typically considered to be an anxiety disorder, but it can also be caused by a condition called chronic pelvic floor dysfunction.
To determine if paruresis qualifies as a disability under the ADAAA, the EEOC letter reminds employers to conduct an individualized analysis to determine if one of the statutory definitions has been satisfied. Those definitions of “disability” include:
- A physical or mental impairment that substantially limits a major life activity
- A record of a physical or mental impairment that substantially limits a major life activity
- An adverse employment action taken because of an actual or perceived impairment that is not both transitory (i.e., expected to last for six months or less) and minor.
An individual with paruresis has a disability under the ADAAA if his or her condition “substantially limits” one or more “major life activities.”
The list of major life activities, though not intended to be exhaustive, has always included caring for oneself. Under the ADAAA and the corresponding regulations published by the EEOC in March 2011, this list now also encompasses bladder and brain functions, as well as operations of the neurological and genitourinary systems.
The regulations make it easier for paruresis to meet the standard.
‘Substantial limitation’?
The term “substantially limits” is broadly construed in favor of expansive coverage.
An impairment no longer has to prevent or severely or significantly restrict a major life activity to be substantially limiting. Additionally, the determination of whether an impairment substantially limits a major life activity must be made without regard to mitigating measures such as medication or cognitive-behavioral therapy.
All of those changes also make it easier for someone with paruresis to meet the statutory standard, but an individualized assessment is still required.
Regarded as disabled
An individual with paruresis also has a disability if the employer “regards” that individual as being disabled.
To regard an employee as disabled, the employer must take an adverse action against the employee because of an actual or perceived impairment (unless the impairment is transitory and minor).
The EEOC takes the view that paruresis does not appear to be a transitory impairment. Accordingly, if an employer terminates, fails to hire or takes another similar adverse action against an individual because of paruresis, whether the condition is real or perceived, it is probable that the individual will have been regarded as having a disability.
It should be noted, however, that employees who are merely regarded as disabled are not entitled to reasonable accommodations.
What employers should do
In light of this EEOC informal discussion letter and the broad definition of disability under the ADAAA, take care if you require applicants or employees to undergo urinalysis-based drug tests. Use caution before subjecting individuals with paruresis to adverse employment actions because they are unable to take a drug test through urinalysis.
If you face this situation, conduct an individualized assessment to determine whether the individual, in fact, qualifies as an individual with a disability under the ADAAA. If he or she does qualify (it’s reasonably likely), consider allowing an alternative drug test that does not involve urination. Among the possibilities: hair or saliva tests, or a so-called patch test in which a subject wears a patch for several days that detects the presence of drugs in an individual’s perspiration.
About the Author: Kerry Langan is a member of Bond, Schoeneck & King’s Labor Law and Employment Law Practice Group. Contact her at (315) 218-8305 or klangan@bsk.com.
