By Patricia Eyers and WAKEUPCALL
An employee with chronic illness may actually be an employee with a disability. If so, this triggers all the rights and responsibilities outlined in the Americans with Disabilities Act (ADA). As such, employers need to be cognizant that an employee requesting leave to handle an aspect of a chronic illness may actually be entitled to reasonable accommodation and other protections afforded by the ADA. Reasonable accommodations might include things like a change in scheduling, altering the way certain non-essential job duties are performed, or reassignment to a vacant position.
Before any of these questions arise, it’s important for employers to understand what constitutes a disability so that they can know when an employee with a chronic illness may be entitled to ADA protections.
When is a chronic illness a disability?
On May 15, 2013, the EEOC issued four new updated documents on protection against disability discrimination. This fulfills an objective of the EEOC’s Strategic Plan to provide up-to-date guidance on the requirements of antidiscrimination laws. The documents address how the ADAAA applies to applicants and employees with cancer, diabetes, epilepsy, and intellectual disabilities—all of which are often chronic illnesses. Here are some of the key points:
- The term “substantial limitations” is to be very broadly construed as it relates to a disability substantially limiting a major life activity.
- “Major life activities” includes a variety of cellular, biologic and/or systemic bodily functions as well as working, concentrating, processing information, communicating, maintaining regular sleep/wake cycles, etc. These new documents have further defined what limitations are covered and what activities are impacted. Remember that the definition of disability is inability to perform or limitations in performing major life activities – not in performing essential job functions. Chronic illnesses are frequently covered disabilities if they substantially limit the major life activity of working.
Can mitigating measures be considered?
A mitigating measure refers to any treatment, therapy, or device which eliminates or reduces the limitations of a disability. When it comes to determining whether a chronic illness or other condition is a disability, however, the positive effects of mitigating measures must be ignored in determining if an impairment is substantially limiting.
We cannot exclude someone from protection from disability discrimination because they use a mitigating measure that limits the impact of their disability on their major life activity. Instead, focus on whether the individual would be limited in performing a major life activity without the mitigating measure.
Negative effects of a mitigating measure, however, must be considered in determining if an individual meets the definition of disability. For example, the side effects from use of medication for hypertension may be considered if they limit a major life activity such as sleeping or concentration.