Disability, Leave & Health Management Blog : Attorneys & Lawyers for Employer Legal Protections in Businesses Nationwide

A mammography tech with epilepsy is not a qualified individual with a disability under the ADA because she cannot perform the essential functions of her job "during the indefinite periods in which she was incapacitated," according to the Eighth Circuit Court of Appeals. Olsen v. Capital Region Medical Center (8th Cir. May 7, 2013). We had posted previously about the district court's decision granting the employer summary judgment on plaintiff's ADA claim.

During seizures, the tech would lose consciousness for several minutes.  Twice she had a seizure while conducting mammogram examinations on patients. In affirming summary judgment, the court also rejected plaintiff's argument that her employer failed to accommodate her by providing her "intermittent rest" because rest did not eliminate the seizures and did not allow her to perform her essential job functions during her periods of temporary incapacity. "The hospital need not subject its patients to potential physical and emotional trauma to comply with its duties" under the ADA, the court added.

Prior to the ADA Amendments Act, some courts had held that an employee who loses consciousness at work periodically was not "disabled" because the episodes were intermittent and, as a result, were not substantially limiting. As a result of the ADAAA, the medical conditions leading to the loss of consciousness are likely "disabilities." The Eighth Circuit's holding that an employee who passes out at work as a result of such a medical condition is not a qualified individual with a disability provides employers much needed guidance in responding to these situations.

A week after the Olsen decision, the EEOC issued “Questions and Answers about Epilepsy in the Workplace and the Americans with Disabilities Act.” The Q's and A's do not discuss whether an individual with epilepsy who has seizures at work is a qualified individual with a disability, although it notes that an employer may need to provide “a private areas to rest after [an employee has] a seizure” as a reasonable accommodation.
 

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The EEOC has released an unofficial version of the much-awaited Final Regulations implementing the ADA Amendments Act (ADAAA). The official version, published in the Federal Register, will be released tomorrow. The Final Regulations become effective 60 days from March 25, 2011, the day they will be published in the Federal Register, The EEOC also has posted Questions and Answers and a Fact Sheet on the Final Rule. Our Disability, Leave and Health Management Practice Group is reviewing the Final Regulations and will analyze the practical implications they will have for ADA compliance and defense strategies. Stay tuned.

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Since the Americans with Disabilities Act Amendments Act was not retroactive, ADA court decisions addressing facts that arose prior to  January 1, 2009, the ADAAA’s effective date, have continued to apply the original ADA, including the now-overruled Supreme Court decisions in the Sutton trilogy and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams.

Now, nearly 20 months after the ADAAA, cases based on facts occurring after January 1, 2009  have made their way through the EEOC administrative process and have reached court.  Perhaps the first ADAAA decision to reach the summary judgment stage illustrates the stark contrast between the original ADA and the ADAAA when it comes to the definition of disability.

In Hoffman v. Carefirst of Fort Wayne, Inc. d/b/a Advanced Healthcare, the plaintiff had Stage III renal cancer.  The defendant argued that the plaintiff did not have a disability under the ADA because there was no substantial limitation on a major life activity, noting that his cancer was in remission during the period that gave rise to the litigation, and he did not have any work restrictions, performed his regular job duties and did not miss any significant time from work.

The federal district court in Indiana rejected this argument summarily since the ADAAA states  that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” The court noted that renal cancer would have substantially limited a major life activity when it was active. The court also relied on the EEOC’s proposed regulations  to implement the ADAAA, which lists cancer as an impairment “that will consistently meet the definition of disability.” Under the original ADA, many courts, after conducting an individualized assessment to determine whether a plaintiff with cancer was substantially limited in a major life activity, had concluded that the plaintiff was not an individual with a disability.

Given the timing of the litigation process, expect a growing number of decisions arising under the ADAAA. Given the breadth of the ADAAA, expect also that many more plaintiffs will  meet the ADAAA’s definition of disability than met the original definition. Watch also for the EEOC’s  final regulations to implement Title 1 of the ADAAA. While the date for these regulations to be issued is uncertain, it has been more than a year since the EEOC published proposed regulations.

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