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Beware subtleties of ‘regarding as disabled’

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in Discrimination and Harassment,Human Resources

Employers can be liable under the ADA if they “regard” someone as disabled—that is, assuming and acting as if the person has a disability. That’s true whether the worker is disabled or not.  

Telling an employee she should pick up medical forms to apply for disability benefits and sending her home until she does apply probably means the employer regarded the employee as disabled.

Recent case: Tina worked as an emergency dispatcher. She sometimes wore a brace on her arm when her rheumatoid arthritis flared up. Her doctors prescribed steroid medications and a painkiller for flare-ups. It was obvious that she was in pain when she wore the brace.

Tina was caught seeking meds from co-workers when she didn’t have access to them at work. When confronted, she told her supervisor that she had her own prescriptions but couldn’t leave work to retrieve them. She was placed on leave pending an investigation.

After one week off, Tina asked if she could return. Her supervisor told her to fill out a disability form requesting benefits. Otherwise, she would face discharge. She was fired when she couldn’t get her doctor to certify that she was disabled.

Tina sued, alleging that she had been regarded as disabled.

The court said she had a case and ordered a trial. (Bryand v. Martin County, No. 07-14-CV-023, WD TX, 2015)

Final note: Never push an employee to apply for disability benefits. You’re essentially saying you believe the employee is disabled. That means a potential “regarded as disabled” lawsuit that lets the employee sue, even if she’s not disabled.

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