Risky Business

Driving a Major Life Activity Under the ADA?

One of my employees was recently diagnosed with a form of epilepsy that makes it unsafe for him to drive his delivery truck. Does this employee’s inability to drive due to his epilepsy entitle him to protection under the Americans with Disabilities Act?

No. The Americans with Disabilities Act (ADA) prohibits discrimination against qualified individuals with a disability. The ADA, which generally applies to employers with 15 or more employees, defines disability as a physical or mental impairment that substantially limits one or more major life activities. Under this definition, protection under the ADA hinges on whether an individual’s ability to perform a major life activity is substantially limited by the impairment. The regulations interpreting the ADA state that major life activities are those basic activities that the average person in the general population can perform with little or no difficulty, including caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This list is not intended to be exhaustive.

In this situation, determining the employee’s eligibility for protection under the ADA requires a determination of whether driving is considered a major life activity. Recently, the Tenth Circuit Court of Appeals joined the Second and Eleventh Circuits in holding that, despite its importance in today’s society, driving is not, in and of itself, a major life activity. Accordingly, it does not appear that the individual in this situation is protected by the ADA. However, the recently passed ADA Amendments Act of 2008 may compel courts to rule differently on this issue when it becomes effective on January 1, 2009 because the list of major life activities has been expanded. Until the ADA Amendments Act undergoes judicial interpretation, however, it will be difficult to gauge the precise scope and impact of the amendments. Thus, it would be wise for employers to familiarize themselves with the new law by consulting a licensed professional.

ADA - Unreasonable Accommodation

One of my employees has asked that an accommodation be made for the employee's legally recognized disability. If no reasonable accommodation exists for this employee, does the Americans with Disabilities Act (ADA) require that I accommodate the employee anyway, even with an unreasonable accommodation?

No. The ADA, which prohibits discrimination against qualified individuals with a disability, generally requires covered employers to provide a "reasonable accommodation" to such individuals so they can actively participate in the workforce. Although the phrase "reasonable accommodation" is not specifically defined in the ADA, it may include the act of making existing facilities used by employees readily accessible to and usable by individuals with disabilities also. Employers are required to participate in an interactive process with disabled individuals to determine what, if any, accommodation(s) can be made. If, after participating in the interactive process and considering all possible reasonable alternatives, it is determined that no reasonable accommodation exists, then the employer cannot be found liable for failing to accommodate the disabled individual.

However, whether or not an accommodation is considered "reasonable" under law is highly fact-specific and usually determined on a case-by-case basis. Therefore, employers need to make absolutely certain that no reasonable accommodation exists before refusing a request by an employee with a disability.

Supporting Documentation Under the FMLA

Can I request supporting documentation from an employee seeking time off to care for a spouse suffering from a serious health condition?

Yes. The Family and Medical Leave Act of 1993 (FMLA) was enacted to balance the demands of the workplace with the needs of families by allowing covered employees to take reasonable leave for medical, health, or family reasons. Under the FMLA, an eligible employee is entitled to take time off to, among other things, care for the "spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." Rather than rely solely on an employee's word, an employer may require that a request for leave to care for a spouse with a serious health condition be supported by a certification issued by the health care provider of the appropriate individual, who in this case would be the employee's spouse.

Although the FMLA specifies the information required to constitute a sufficient certification of the need for FMLA leave, the Department of Labor has prepared a Certification of Health Care Provider form intended to simplify the certification procedure. Despite this standardized form, employers wishing to avoid claims of discrimination must be careful in the way they request certifications from their employees. For example, employers who ask for medical certifications from men requesting leave to care for a child, but who do not do so for women making the same request, could find themselves responding to allegations of unlawful discrimination on the basis of sex.