The expansion of coverage under the Americans with Disabilities Act (ADA) last year has resulted in confusion over what actually constitutes a "disability."  Congress' new law essentially wipes out a decade of court opinions that attempted to provide an understandable definition.  Last week, I attended seminars hosted by the Pennsylvania Employment Law Institute addressing the new law hoping to gain some insight.  Unfortunately, not one judge, attorney or member of the Equal Employment Opportunity Commission in attendance was able to offer practical guidance on how to define a covered disability.  Since it appears that just about any medical condition arguably qualifies for protection, the question of compliance will likely focus on whether employers provide reasonable accommodations to employees who claim to be disabled.

Employers who become aware of a disabled employee's need for assistance to perform the job must engage in an interactive process with the employee to determine whether a reasonable accommodation is feasible.  Employers who refuse to provide an accommodation they deem to be unreasonable bear the burden of proving it!  For this reason, it is critical that the employer engage in this interactive dialogue with the employee in a timely fashion and in good faith.  Proper designation of the players in this process, together with effective documentation is key.

Here are some practical tips on handling an employee's request for accommodations:

1.    Implement a written policy acknowledging the obligation to comply with the ADA and defining procedures on how to address requests;

2.    Ensure that written job descriptions identifying the essential functions of the job are adopted and properly conveyed to all employees;

3.    If an employee presents a vague or confusing medical note, request that the employee provide written clarification from the physician;

4.    In cases where the medical documentation is confusing, it may be appropriate to request from the employee the authority to confer directly with his/her physician in order to clarify the employee's needs (this is an aggressive approach and should be carefully documented).

This new law is bound to lead to litigation, especially when no one rally knows its boundaries.  Therefore, it is recommended that employers seek advice from competent counsel in order to ensure compliance.  The attorneys at Siana, Bellwoar & McAndrew would look forward to advising you in connection with this evolving area of the law.