Both federal and state laws protect employees with certain disabilities from employment discrimination. But different people may be covered under state and federal laws, based on the specifics of their medical conditions. Under the federal Americans with Disabilities Act (ADA), says John Sarno, president of the Employers Association of New Jersey, “the person must be experiencing a more or less permanent disability that has a big impact on their ability to function.” New Jersey law is more lenient and may cover medical conditions not falling within the more rigorous ADA definition.
Sarno gives an “Americans With Disabilities Act Update” on Friday, February 10, at 9 a.m., at the Wellesley Inn in Fairfield. Cost: $95. Call 973-758-6800.
Employers need to be aware of the ins and outs of the laws, because, as Sarno says, “the stakes are high for getting it wrong.” Consequences for noncompliance can include citations from the Equal Employment Opportunity Commission or the New Jersey Division on Civil Rights, or even a court action. In this seminar Sarno will cover a number of current issues that employers must consider with regard to disability:
What is a major life activity, anyway? What characterizes ADA disabilities is that they prevent people from functioning in a major life activity, for example, cleaning, cooking, caring for oneself, walking, seeing, and hearing.
One surprising activity that falls under ADA protection, says Sarno, is reproduction. Its raison-d’etre is to protect asymptomatic HIV-positive individuals from employment discrimination. “The Supreme Court created a major life activity for people who would be discriminated against for HIV,” says Sarno. This new category may also provide some protection for people with fertility conditions, and employers may have to accommodate them with leaves of absence for fertility treatments.
A sticky issue is whether working itself is a major life activity. The issue is complicated, according to Sarno, and the Supreme Court has not made a final determination. He cites a case where a person was able to do her job as an elevator operator, but then automation phased out her position and pretty much all such jobs. The woman had a weak heart and hypertension, but when her elevator operator job vanished, she was denied Social Security disability benefits, because she was still theoretically “able” to do her last job, even though it was no longer available.
The Third Circuit court held that “a claimant’s previous work must be substantial gainful work which exists in the national economy.” The Supreme Court, however, reversed the decision, concluding that the Social Security Administration’s (SSA) determination that the woman was not disabled should stand. SSA was not required to investigate whether the work she once did still existed in significant numbers in the national economy.
How do state and federal laws differ? The New Jersey Law Against Discrimination (LAD), like the ADA, prevents employment discrimination against people with a disability and requires employers to accommodate them, but those protected under the laws can differ. LAD does not require that a disability have a serious impact on a major life activity, but rather covers “a diagnosable disability caused by some impairment or infirmity.” Sarno says that “the state law is much more protective of more people with medical conditions.” As a result, carpal tunnel syndrome and degenerative spinal cord disease may be disabilities under LAD, but not under ADA.
The ADA does not prevent employers from making employment decisions based on whether a person is genetically prone to a specific disease or disability, whereas state law prohibits such discrimination. (Since federal employees are covered by an executive order, not a Congressional act, they are also protected from genetic discrimination.)
New Jersey is progressive in this arena. “You can discriminate based on genetic information in most states,” says Sarno. Although there have been some bills in Congress about genetic discrimination, they have not gone very far.
What does “reasonable accommodation” mean? The New Jersey Division on Civil Rights has issued a new regulation that clarifies how companies should think about leaves of absence as possible accommodations. A company must weigh the following factors in making a determination: the type of job, needs of the business, whether other accommodations would be just as effective, and whether the person is eligible for Family Medical Leave.
For example, says Sarno, a large company with routine jobs that are always available may be able to keep a job open for 12 months. A small company, on the other hand, may not be able to keep its single customer service position open at all.
What is the “interactive process” required by the ADA to determine reasonable accommodations? According to an article at mediate.com by Douglas R. Andres and Clay D. Creps, it must include a number of specific steps. The employer must analyze the particular job involved to determine its purpose and essential functions. Then the employer and individual with a disability work together to identify barriers to performance of particular job functions. Analysis should include a review of the individual’s abilities and limitations.
The employer, working with the individual, identifies a range of possible accommodations, and the employer assesses the effectiveness of each identified accommodation, takes into account the individual’s preferences, and then decides whether various accommodations would pose an undue hardship upon the business.
How do employers obtain accurate medical information to feed into the interactive process? “Companies must make sure that doctors have a complete description of the job,” says Sarno, “so that they can offer a credible opinion as to whether an employee can perform it safely.” But often the employer hasn’t provided enough information to the doctor, either about the job itself or the work environment.
“The gap must be bridged to successfully go through the interactive process,” says Sarno. “The job description doesn’t tell the whole story.”
What are the requirements regarding confidentiality of medical information? Medical records must be stored securely and access must be limited to those who have a “need to know,” which usually means one or two people in the organization.
Sarno earned his bachelor’s degree from Ramapo College in 1977. After he got a master’s degree in counseling from Seton Hall University in 1980, Ramapo hired him as a counselor for people with disabilities. He ran the office of specialized services there for a decade, gaining in the process an extensive clinical background. The program received national recognition for its work with students with disabilities.
While working at Ramapo, Sarno earned his JD from Seton Hall University. He believes law was a natural extension of the disabilities work he was doing. After law school, he clerked in federal court and practiced general litigation there from 1989 to 1995. “Now I am back working with employers, combining my two careers,” he says. He has been with EANJ for 10 years.
Sarno sees his own role as providing a dual perspective to employers. “You want an advisor to be able to see the big picture,” he says. “The ADA should not be about litigation. It should be about finding common ground — that’s what the interactive process is all about.” Litigation comes when you are taking only one perspective — whether it is the employer’s or the employee’s. Sarno says that EANJ is practical and solution-oriented. “The point is to avoid litigation and solve the problem.”