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As we close out 2014 and survey the more prominent areas under the civil rights laws where employers need to focus, the Americans with Disabilities Act (ADA) remains in the forefront. As reported in the Dallas Business Journal on December 24, 2014, Texas based employers saw payouts over the past five years rise from $5.4 million in 2009 to $9.7 million in 2013.

Indeed, Texas finds itself in the middle of the pack for such noted payouts under the ADA, with 40 states seeing increases in ADA fines over the past five years. The reason continues to be the amendments to the ADA, passed in 2008, which significantly lowered the threshold for who qualifies as "disabled" under the Act. Id.

The amendments eliminated in significant part an employer's ability to argue from a definitional standpoint that an individual is not "disabled" under the law and therefore not covered by the ADA. For example, pre-amendment, the ADA looked at a plaintiff with a potential disability in their "medicated" state and then analyzed whether or not they had a mental or physical impairment that significantly impacted a major life activity. Thus, an individual who presented with diabetes but otherwise responded well to insulin treatment so that their eating and work activities were not significantly impacted would, under the pre-amended ADA, likely not be "disabled." However, the amendments have for the most part eliminated such mitigating factors (with few exceptions, like eyeglasses), and thus this insulin dependent person would now be classified as "disabled" under the law despite their positive reaction to the medication.

What this means for employers now is that they need to more closely work with employees who present with "disabilities" to determine what, if any, reasonable accommodations can be provided to allow a "disabled" person to perform the essential functions of the position at issue. This of course is more commonly referred to as the "interactive process" between the employer and employee. In this regard the EEOC, among other factors, will be focusing on:

  1. An employer's job descriptions in determining the essential functions of the position at issue and how accurately they reflect the reality of the job at hand;
  2. The actual interaction(s) between the employer and employee in evaluating potential accommodations and the employer's record of such interactions; and,
  3. The follow-up an employer has with an accommodated individual to ensure the accommodation is assisting in having the employee perform the job's essential functions.

To be sure, there may be instances where accommodation is not possible, for example, a 10-pound lifting restriction due to a chronic back problem involving a laborer position that routinely requires lifting of over 50 pounds. But, employers are wise to go through the interactive process to make such determinations in order to satisfy the new ADA. It is expected that the ADA will remain a focus of the EEOC for 2015, so employers should take stock as we kick-off the new year and make sure they are ADA compliant.

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