4.5 AMERICANS WITH DISABILITIES ACT (ADA)
4.501 Scope.
The Americans with Disabilities Act (ADA) 2009 protects qualified individuals with disabilities from discrimination in employment, 2010 public services and transportation, and telecommunication services. In 2008, Congress enacted the ADA Amendments Act (ADAAA), 2011 which amended the ADA and other disability nondiscrimination laws to further clarify the rights of persons with disabilities.
A state statute, the Virginians with Disabilities Act, 2012 also provides workplace rights to individuals with disabilities.
4.502 Aspects of Employment Covered.
The ADA prohibits private employers with 15 or more employees 2013 from discriminating in recruitment, hiring, promotion, discharge, compensation, training, and "other terms, conditions, and privileges of employment." 2014 As with other federal anti-discrimination statutes, the courts have ruled that protected individuals cannot be harassed on the job, so a claim alleging a hostile work environment based on the claimant's disability is a viable one under the ADA. 2015 An employer does not violate the ADA when it discharges an employee with a disability for misconduct, even if the misconduct is related to the disability. 2016
4.503 "Qualified Individuals."
A. In General.
The ADA only protects "qualified individuals" with disabilities. A "qualified individual" is someone with a disability who has the requisite skill, experience, and education necessary for a particular position and can perform the essential job functions of that position, with or without reasonable accommodation. 2017 The Fourth Circuit has ruled that whether a plaintiff meets the statutory definition of a disabled person is a question of law for the court, not a question of fact for the jury. 2018
B. Disability Defined.
1. In General.
The ADA does not attempt to define every condition that might qualify a person as disabled but instead provides certain qualifying criteria. Persons with disabilities for purposes of the ADA include (i) individuals with actual physical or mental impairments; (ii) individuals with records of impairments; or (iii) individuals regarded as having impairments. 2019 Because of the sweeping changes made to the definition of disability by the ADA Amendments Act of 2008, 2020 discussed below, counsel should be extremely cautious in citing to cases on this issue decided before the effective date of the amendments.
2. Actual Physical or Mental Impairment.
a. In General.
A physical or mental impairment that substantially limits one or more major life activities is a disability. A "physical or mental impairment" means a "physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems" or a "mental or psychological disorder, such as an intellectual disability." 2021 "Major life activities" include activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working 2022 as well as the operation of major bodily functions such as the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. 2023
Mitigating measures other than ordinary eyeglasses or contact lenses may not be considered when determining whether an individual is disabled under the ADA. 2024
b. "Substantially Limited."
The ADA Amendments Act of 2008 (ADAAA) 2025 was enacted to expand the definition of "substantially limited" and to specifically reverse the holdings of two Supreme Court cases that "created an inappropriately high level of limitation necessary to obtain coverage under the ADA." 2026
The ADAAA provides that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations. The question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis. 2027
Under the EEOC regulations, revised pursuant to the ADAAA, an impairment is a disability if it "substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." 2028 However, an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. 2029
c. Temporary or Episodic Impairments.
Before the ADAAA, the term "disability" did not include temporary medical conditions, even if those conditions required extended absences from work. 2030 Intermittent manifestations of an illness were insufficient to establish a substantial limitation of a major life activity. 2031 Under the ADAAA, however, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 2032 The Fourth Circuit has held that under the ADAAA, a sufficiently severe temporary impairment may constitute a disability. 2033 The court held that an injury that left the plaintiff unable to walk for seven months and that, without surgery, pain medication, and physical therapy, likely would have rendered the plaintiff unable to walk for far longer, can constitute a disability under the ADA. 2034 The opinion indicated that the Fourth Circuit is the first appellate court to apply the ADAAA's expanded definition of "disability." 2035
3. Record of an Impairment.
Individuals misclassified as having impairments that substantially limit major life activities or individuals with histories of physical or mental impairments that substantially limit major life activities, even if no longer impaired, may qualify as individuals with disabilities. 2036
4. Regarded as Having an Impairment.
Individuals with impairments that do not substantially limit major life activities but who are treated as having those impairments by their employers are persons with a disability under the ADA. 2037
5. Specific Exclusions.
Expressly excluded from the ADA's definition of disability are current illegal drug use and related psychoactive substance use disorders, 2038 sexual behavior disorders such as transvestism and pedophilia, 2039 compulsive gambling, kleptomania, and pyromania. 2040 However, individuals who have completed drug rehabilitation programs or who are participating in rehabilitation programs and no longer use illegal drugs are not excluded from the ADA's coverage. 2041 For purposes of the ADA, homosexuality and bisexuality are not considered impairments and so are not defined as disabilities. 2042 Alcoholism may qualify as a disability, 2043 although an employer may hold an alcoholic to the same behavior and performance standards as other employees, even if the poor behavior or performance is related to the alcoholism. 2044
C. Essential Job Functions.
The essential job functions of a particular position, as distinguished from marginal job functions, are the fundamental duties that individuals holding the position must be able to perform, including coming to work on a regular basis. 2045
The determination of whether job functions are essential or marginal is made on a case-by-case basis by considering (i) employer judgment; (ii) written job descriptions; (iii) time spent performing particular functions; (iv) consequences of not performing functions; (v) terms of collective bargaining agreements; and (vi) work experiences of current and past employees with comparable positions. 2046
D. Disability Under Other Statutes.
If a person is found to be permanently disabled under a statute other than the ADA, such as the Virginia Workers' Compensation Act or the Social Security Act, and is awarded benefits under that statute, he or she is not automatically barred from pursuing a claim of discrimination under the ADA. 2047
4.504 Duty of Reasonable Accommodation.
Employers have a duty to make reasonable accommodations for known physical or mental impairments of employees or job applicants who qualify as individuals with disabilities under the ADA. 2048 Reasonable accommodations may include (i) making facilities accessible to individuals with disabilities; (ii) restructuring positions; (iii) adjusting work schedules or equipment; (iv) reassignments to vacant positions; 2049 (v) modifying training materials, policies, or examinations; or (vi) providing readers or interpreters. 2050 Reasonable accommodations may also require permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment. 2051
Reasonable accommodation is "logically construed as that which presently, or in the immediate future, enables the employee to perform the essential functions of the job in question." 2052 The ADA does not require employers "to wait an indefinite period for an accommodation to achieve its intended effect" or to alter the essence of the job. 2053
Once an employer is on notice of an employee's need for an accommodation, it may be necessary for the employer to "initiate an informal, interactive process" with the employee to attempt to determine potential reasonable accommodations. 2054
4.505 Undue Hardship.
A. In General.
Employers do not have to provide reasonable accommodations for the known physical or mental limitations of an otherwise qualified individual if doing so would impose an undue hardship on their business. 2055 Accommodations...
