For those employers who thought their troubles with the Americans with Disabilities Act (ADA) would ease in the aftermath of last month's trio of rulings by the U.S. Supreme Court, guess again. The reason: The high court's rulings provide guidance only as to who is considered to have a disability or who is viewed as disabled. Those rulings help to establish the universe of people covered by the ADA. However, there are far more troubling ADA issues -- particularly those related to how to make an accommodation for someone with a disability -- still unresolved nine years after the law's enactment. There still are a lot of uncertainties that exist because of court decisions that conflict with enforcement guidelines from the Equal Employment Opportunity Commission (EEOC) and because of conflicting appellate-court decisions, says Peter J. Petesch, a partner in the Washington, D.C., office of Ford & Harrison LLP. Among the key areas where Petesch says the courts and the EEOC disagree:
- What is a reasonable accommodation for someone with a disability.
- How long a workplace leave can or must be for someone with a disability.
- Whether regular and consistent attendance and the ability to work overtime or certain hours can be considered an essential job function.
- Whether the employer has a responsibility to reassign someone with a disability to another job when that individual -- because of a disability -- is no longer qualified to perform the job he or she was originally hired to do.
For example, in its 71 pages of guidelines issued last March, the EEOC -- despite court decisions to the contrary -- said:
- Indefinite leave for someone with a disability can be a reasonable job accommodation.
- A job must be held open permanently for a person unless a company can show that would cause undue hardship.
- Companies cannot make the issue of regular attendance an essential function of the job.
"How far must an employer be expected to look to find a job for someone with a disability?" asks Ann Reesman, general counsel with the Equal Employment Advisory Council, Washington. "We need the court to nail down some of the definitions [with regard to] the scope of the duty of the employer to make reasonable accommodations [for] leave-of-absence, work assignments, scheduling, and holding jobs open for employees." Some of those issues already have reached the appellate-court level. At issue in a case now pending in the 9th Circuit Court of Appeals is whether an employer must reassign a disabled employee who cannot be accommodated in his or her current position to any vacant position for which he or she meets minimal qualifications -- regardless of whether another employee is more qualified. The EEOC in its friend-of-the-court brief argues that the ADA requires such reassignments. "That is contrary to both the language and the spirit of the ADA," argues Reesman. "Such a rule would unfairly infringe on the rights of other employees," as well as conflict with decisions made by the 8th, 9th, and 10th Circuit Courts. Similarly, several circuit courts have ruled -- contrary to EEOC guidelines -- that working at a particular time can be as essential as performing the job functions themselves. EEOC guidelines and some circuit courts also disagree on the use of indefinite leave as a reasonable accommodation and whether "regular and predictable attendance" can be viewed as an essential function of the job. "Everyone is still grappling with all the terms in the law," says Petesch. "There need to be some consistent principles that can be applied. And, in the long run, that will have to come out of the Supreme Court." Yet, even with guidance from the court, some aspects of the ADA law may "almost always demand case-by-case" solutions, says Petesch. "What is a reasonable accommodation," for example, might "always be a moving target, because a person's condition and limitations -- as well as a person's job -- can change." Until the Supreme Court resolves issues surrounding accommodations, Reesman observes, employers will be forced to choose between EEOC guidelines for ADA compliance and workplace morale. "I am concerned that we are headed toward a situation where employers are going to feel forced to [live with] the idea of a workplace where 20% of their people are away from work on one type of medical leave or another," she says. "And I'm not sure that is a good idea."
