New federal law redefines ADA

Q. A new employee who recently started working as a teller trainee for our bank informed HR that she has a learning disability and has been having trouble keeping up with the training program. Do we need to accommodate her? She did pass our pre-employment testing, so we are wondering how bad can it be? If it is a problem, can we transfer her to another position that does not require such strong skills in accuracy, reading and mental acuity?

A. As of Jan. 1, the Americans With Disabilities Act (ADA) was expanded to cover millions more individuals with disabilities under the ADA Amendment Act. The new act changes the ADA in four ways:

• In order to be entitled to a reasonable accommodation by an employer or a public accommodation, an individual must have a physical or mental impairment that “substantially limits” a “major life activity.” The ADA now includes a broad, non-exclusive list of major life activities that also includes activities that had been debated by courts, such as caring for oneself, performing manual tasks, eating, sleeping, walking, learning, reading, concentrating, thinking and communicating.

Moreover, the “operation of a major bodily function” also is a major life activity. Among these functions are the immune system, blood disorders, and intestinal neurological, respiratory, endocrine and reproductive functions.

• Before the Amendment Act, the U.S. Supreme Court defined “substantially limits” as an impairment that must “prevent or severely restrict” a major life activity. Under this demanding standard, courts threw out many lawsuits and claims. The Amendment Act, however, defines the term as meaning “significantly restricted.” While this may seem to be a difference of degree, it would have led to different results in many pre-2009 ADA cases.

• In analyzing whether an impairment substantially limits a major life activity, the Amendment Act now requires an employee’s medical condition to be analyzed without regard to mitigating measures, such as med-ication or prosthetic devices. One exception is that individuals should be evaluated with their ordinary eyeglasses or contact lenses, which are intended to fully correct vision.

• The ADA prohibits discrimination on the basis that an employer regarded someone as having a disability, and as a result of this perception treated the individual in an adverse way. This meant that the employer must regard the individual as being substantially limited in a major life activity.

But in what could be the most profound change to the ADA, under the Amendment Act, an individual need only show he or she was subjected to an adverse act because of an actual or perceived physical or mental impairment, “whether or not the impairment limits or is perceived to limit a major life activity.”

Thus, an employee with high blood pressure may only need to show that his employer restricted him from one or two strenuous jobs because of his high blood pressure in order to establish a “regarded as” claim. While an employer is not required to provide reasonable accommodations, employers will be more vulnerable to ADA claims by virtue of considering the employee to be impaired in some way.

The ADA requires employers to engage in an interactive process with disabled employees when determining what accommodations, if any, will allow the employee to perform the essential functions of the job. The new focus is expected to be less on whether the employee has a qualifying “disability” and more on the interactive process itself.

Before 2009, the bank teller trainee may not have been able to show she was “severely restricted” in a major life activity if she was able to earn a degree in school and perform well in pre-employment testing. But under the lower standard of “significantly restricted,” she may well be entitled to ADA protection.

Therefore, the bank should engage in the interactive process with the employee to determine the extent of the employee’s impairment and to identify possible accommodations. If she is deemed significantly restricted in the major life activity of learning, the bank will need to provide reasonable accommodations that will allow the employee to complete the training program and perform the essential functions of her job as a teller.

Even if the employee’s learning disability is so minor that she cannot establish any significant restriction, the bank should not prohibit the employee from being a teller yet. If so, the employee may be able to claim the bank “regarded” her as having a disability. Rather, the bank will need to give the employee a chance to perform the job, and then evaluate her actual job performance. Any decisions regarding a job transfer or other employment action must be based on job-related reasons.

Andrea G. Chatfield is a member of the Employment Law Practice Group and the Corporate Department at the law firm of McLane, Graf, Raulerson & Middleton. She can be reached at 603-628-1341 or andrea.chatfield@mclane.com.