This month marks thirtieth anniversary of the passage of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., a landmark piece of civil rights legislation that prohibits discrimination on the basis of disability. The ADA requires that people with disabilities be granted equal access to employment, public services, and public accommodations.  It achieves this by mandating that employers provide reasonable accommodations to employees with disabilities; that governments provide equal access to services for people with disabilities; and that “public accommodations” (including both governments and private businesses serving the public) modify their facilities to make them accessible to people with disabilities.

Bush signs the ADA.

President Bush signing the Americans with Disabilities Act, July 26, 1990.

The ADA is unique among civil rights laws in that it recognizes that people with disabilities require additional help to fully participate in public life. Whereas The Civil Rights Act of 1964 prohibits discrimination on the basis of immutable characteristics (such as race, gender, and national origin) and religious beliefs – characteristics that generally do not give rise to restrictions and limitations – the ADA acknowledges that people with disabilities require assistance to achieve equality.  By imposing an obligation on employers, governments, and businesses to provide accommodations and modifications, the ADA reflects a policy choice that the benefits of full participation by people with disabilities in society outweigh the costs.

The ADA is not without its limitations. Following the ADA’s passage in 1990, litigation centered on who was a “qualified individual” eligible for the protections of the Act. Paradoxically, individuals with medical conditions that could be remedied with corrective measures were deemed to lack standing under the Act, even if they were discriminated against on the basis of that medical condition. See, e.g., Sutton v. United Airlines, Inc., 527 U.S. 471 (1999) (ruling plaintiffs with severe but correctable myopia lacked standing under the ADA to challenge airline policy of only hiring only people with uncorrected visual acuity of 20/100 or better). Congress fixed that problem in 2008 with the passage of the ADA Amendments Act, which clarified that a person may be eligible for the protections of the Act if he or she was substantially limited in a “major life activity” or “major bodily function,” and provided examples of each.

Yet another limitation of the ADA is it requires that a person with a disability affirmatively request an accommodation to be eligible for the Act’s protections. This can be awkward, and even devastating, for individuals with hidden disabilities, such as mental illness, who would prefer to keep such matters private and may fear future discrimination after disclosing their condition. Thus, there is an inherent tension under the ADA between the right to equal access and the right to privacy. This tradeoff is yet another example of the careful balancing act struck by the ADA which makes it unique among civil rights laws.

Another challenge for employees and employers alike is knowing what is a “reasonable accommodation” under the ADA.  Generally speaking, a request to permanently reduce one’s hours, from full-time to part-time, is not “reasonable.”  However, a flexible work schedule, or the ability to work from home, can be reasonable accommodations, particularly if those accommodations are already being offered to other employees.  The Job Accommodation Network (www.askjan.org) is an excellent resource for employees and employers seeking to educate themselves on the current requirements of the law.

Unfortunately, the ADA has limited application in the benefits context. That is because courts have ruled that the protections of the Act do not extend to former employees, nor does the Act regulate the content of insurance policies. See, e.g., Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) (ruling former employee who was now totally disabled was no longer a “qualified individual” and therefore lacked standing to challenge mental illness limitation in group policy of disability insurance).  Moreover, while technically possible, it is difficult to pursue a disability discrimination claim against one’s current or former employer while simultaneously seeking disability benefits under the employer’s disability plan, since the employer may cite the disability benefits claim as evidence that the employee is unable to work so as to limit damages.

There are some instances, though, where the ADA can be used to the advantage of disability benefits claimants. If, for example, an employee requests a reasonable accommodation and the employer denies his or her request, the employee may cite that denial in support of his or her application for disability benefits, and the disability plan administrator would then be estopped from considering that accommodation in its vocational analysis.  See, e.g., Ross v. Indiana State Teacher’s Ass’n Ins. Tr., 159 F.3d 1001, 1011 (7th Cir. 1998) (ruling disability plan administrator may rely on availability of accommodations to deny disability claim so long as those accommodations were actually offered by the employer).  We expect to see more disability plan administrators citing the availability of remote work as a basis to deny disability benefits now that working from home has become more common due to the COVID-19 pandemic.

One potential trap for the unwary is an offer of reassignment to a vacant position.  Where an employee is no longer able to perform the material duties of his or her occupation, with or without an accommodation, due to disability, the ADA expressly identifies reassignment to another vacant position to be a “reasonable accommodation.”  Employees who accept reassignment will likely take a pay cut, however, which could lower their disability payment should they later prove unable to perform the less demanding position and decide to claim disability benefits.

If you are faced with the dilemma of whether to request a reasonable accommodation or to apply for disability benefits under your employer’s plan, or if you have other questions about the intersection of the ADA and benefits law, the experienced attorneys at DeBofsky Sherman Casciari Reynolds P.C. can help you to understand your rights.

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