Employers struggle with the definition of “disability” under the federal ADA. Most people in the HR field know that an ADA disability is a physical or mental condition that substantially limits a major life activity, but this definition is of little use when it comes to determining whether a particular employee is disabled.
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Disability Law Update
Employer’s ADA Analysis Too Restrictive,
Says Ninth Circuit
A First Look At ADAAA
By Christopher W. Olmsted
Employers struggle with the definition of “disability” under the federal ADA. Most people in the HR field know that an ADA disability is a physical or mental condition that substantially limits a major life activity, but this definition is of little use when it comes to determining whether a particular employee is disabled.
As the employer discovered in a recent Ninth Circuit case, Rohr v. Salt River Project Agricultural Improvement and Power District, an overly restrictive interpretation of the definition leads to litigation.
A Diabetic Welder
Mr. Rohr worked as a welding metallurgy specialist in the Plant Technical Support Group at Salt River, which provides utility services to homes in Arizona. He was responsible for overseeing welding procedures, training, and quality control. Most of his work was done in an office, although he occasionally traveled to other sites to do inspections or training.
Mr. Rohr had insulin-dependent type 2 diabetes. As a result of his diabetes, Mr. Rohr suffered from chronic high blood pressure, deteriorating vision and occasional loss of feeling in his hands and feet. He tired quickly, especially when he drove for long periods of time or when exposed to heat for some length of time.
Disability Interfered With Respirator Certification
Mr. Rohr’s medical condition affected his position at Salt River in two respects. First, he was unable to pass a respiratory device test. Pursuant to Occupational Health and Safety Administration (“OSHA”) guidelines, Salt River required all employees who might be required to use a respirator to obtain and renew a respirator certification annually; this necessitated a yearly medical valuation. Salt River refused to administer the medical valuation because of Mr. Rohr’s high blood pressure. As a result, Rohr could not complete the medical evaluation and was unable to renew his respirator certification.
Disability Interfered With Travel Requirements
Second, Mr. Rohr was unable to work in the field on a six-week project. He claimed that with his disability, he could not handle long hours, travel, and strenuous work conditions.
Mr. Rohr requested an accommodation regarding the travel requirement. The company doctor evaluated Mr. Rohr and determined that his diabetic condition prevented him from performing essential job functions, including travel. It gave him the option of finding another position, taking disability benefits, or retiring. Mr. Rohr took disability benefits, and then sued.
The Lawsuit
Mr. Rohr alleged disability discrimination pursuant to the ADA. The ADA prohibits employers from “discriminat[ing] against a qualified individual with a disability,” and requires employers to provide “reasonable accommodations to the known physical or mental limitations of an otherwise qualified [employee] with a disability.”
The company filed a motion for summary judgment, seeking to terminate the lawsuit. It argued that Mr. Rohr was not entitled to ADA protections because he did not have a “disability” within the meaning of the ADA, and because his inability to complete the respirator certification test rendered him unqualified for his position.
The trial court agreed, and granted the motion terminating the case. However, on appeal, the Ninth Circuit reversed the trial court’s decision after it determined that Mr. Rohr presented sufficient evidence to proceed to trial.
Diabetic Condition Was A “Disability”
The Ninth Circuit determined that Mr. Rohr presented sufficient evidence that he was disabled. The court began by noting that a disability is a physical or mental condition that “substantially limits a major life activity.” The court agreed with the employee that the major life activity in question was “eating.”
Next the court evaluated whether or not Mr. Rohr’s condition “substantially limits” the major life activity. “To determine whether an insulin-dependent type 2 diabetic like Rohr is substantially limited in his eating,” wrote the court, “we must compare the condition, manner or duration under which he can eat as compared to the condition, manner or duration under which the average person in the general population can eat.”
“In deciding whether the impairment is substantially limiting, courts must consider the nature and severity of the plaintiff’s impairment, the duration or expected duration of the impairment, as well as the permanent or long term impact of the impairment.”
The court concluded that Mr. Rohr presented sufficient evidence to go to trial. To manage his disease, noted the court, Mr. Rohr is required to strictly monitor what, and when, he eats. Mr. Rohr stated that these restrictions constrain him every day, “whether it’s a workday, a weekend or a holiday.” He cannot eat large meals or skip meals, and must eat a snack every few hours. He must schedule each day’s blood tests, medications and food intake. He “sometimes become[s] weak and dizzy without warning,” and only when he eats something do these sensations quickly subside. If he fails to follow his diet regimen for more than a meal or two, his blood sugar rises to a level that aggravates his disease. Rohr stated that overall, “[c]ontrolling diabetes is like being on a chemical roller coaster.”
Therefore, concluded the court, Mr. Rohr presented sufficient evidence that he has a physical condition which substantially limits the major life activity of eating.
Evaluation Under Amended ADA
The court of appeal also examined the claim in light of the amended ADA. The court noted that the ADAAA clarifies Congress’s intent with respect to the term “disability” in three major ways that could affect whether ADA protections are extended to persons with diabetes. (1) First, the law now expressly states that eating is a major life activity. (2) Second, the ADAAA rejected the Supreme Court’s requirement that only severe disabilities “substantially limit” a major life activity. (3) Third, the ADAAA rejects the Supreme Court’s requirement that whether an impairment substantially limits a major life activity is to be determined with reference to mitigating measures such as medication. Impairments are to be evaluated in their unmitigated state, so that, for example, diabetes will be assessed in terms of its limitations on major life activities when the diabetic does not take insulin injections or medicine and does not require behavioral adaptations such as a strict diet.
Thus, under the ADAAA, it is doubly clear that Mr. Rohr presented evidence supporting his claim that he was disabled.
Employee Was A Qualified Individual
To state a claim of discrimination under the ADA, a plaintiff must establish that he or she is a “qualified individual.” The ADA defines a “qualified individual,” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position.” The individual must also “satisf[y] the requisite skill, experience, education and other job-related requirements of the position.”
The trial court concluded that Mr. Rohr was not qualified for his position as a welding metallurgy specialist because he did not obtain the required annual respirator certification.
The court of appeal disagreed. The respirator certification test was itself discriminatory. The ADA defines “discriminate,” among other things, as using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability . . . unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.
The court decided that the company failed to establish that the respirator certification test was a business necessity. OSHA’s regulations require that the employer must establish and maintain a written “respiratory protection program” that includes, inter alia, “[m]edical evaluations of employees required to use respirators.” However, OSHA’s regulations were sufficiently broad to allow the company the discretion to determine how, and how often, it would evaluate its employees’ ability to use a respirator.
Perhaps the company could have provided reasonable accommodations to enable Mr. Rohr to complete the test.
The company failed to show the necessity of the particular breathilator test that it used in the evaluation, or the absence of any alternative respiratory evaluation appropriate for individuals with high blood pressure.
The company also failed to show that any such alternative method would impose an undue hardship.
The company also failed to show that the certification test was related to Rohr’s job.
The company failed to show that Rohr carried a respirator, or that respirators were readily accessible in the areas in which Rohr was assigned to work. Rohr argued that in twenty-three years as a welding specialist, he never had to use a respirator.
Practical Tips:
Expanded disabilities. The ADAAA provides a new, more expansive definition of disability. California law (FEHA) is already quite broad. Special care should be taken before concluding that an employee with a physical or mental impairment is not disbled.
Disregard mitigating measures. Under the ADAAA and California law, disabilities should be evaluated without regard to mitigating measures such as medication.
Job qualifications must be job related. Any essential job qualifications or functions which may disqualify a disabled individual should be carefully evaluated. Be sure that the standard, test or other criteria is necessary and directly related to the job in question.
More Legal Update articles.
Download entire March Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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