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Question: After many years of diabetes, a 60-year-old office worker develops nephropathy followed by end-stage renal disease, and now requires dialysis. He has opted for peritoneal dialysis rather than hemodialysis, so that he does not have to be away from the workplace for treatment. His diabetes is insulin requiring, and he has occasional hypoglycemic reactions. Although he qualifies for Social Security disability benefits, he prefers to continue working full time. The employer is considering terminating him.
Which of the following is best?
A. The Americans with Disabilities Act prohibits job discrimination against patients with disabilities, so long as they are otherwise qualified for every aspect of the job.
B. Renal insufficiency and diabetes are considered disabilities under the ADA.
C. The employer is obligated to provide full accommodation to enable this employee to continue working.
D. If the accommodations needed for a disabled person are unreasonable, or prove too disruptive or expensive, then the employer is not obligated to provide them.
E. This patient should simply retire and enjoy his SS disability benefits.
Answer: D. Enacted in 1990, the Americans with Disabilities Act seeks to provide clear, strong, consistent, and enforceable standards for ending discrimination against individuals with disabilities.1 The main thrust of the ADA, Title I, is to protect otherwise qualified workers with permanent disabilities from losing their jobs or seeking one, so long as they are qualified to perform the essential (not necessarily all) functions of the job.
In addition, the law prohibits discrimination against people with disabilities from accessing public accommodations (Title III), which include doctors’ offices and health care facilities, as well as restaurants, retail stores, etc. Other areas under the purview of the omnibus ADA include transportation, communications, and access to state and local government programs and services.
The Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA, the section that deals with job discrimination. Its compliance manual sets out guidelines for determining whether an individual in fact has a disability.
The word “disability” has three components, and the term is not synonymous with “impairment.” However, a disability begins with having an impairment, defined as a physiological disorder affecting one or more of a number of body systems or a mental or psychological disorder.
An example given by the EEOC: If a person cannot find a job because that person has the equivalent of a second-grade education and therefore cannot read, that person does not have an impairment for purposes of the ADA. If, however, that person cannot read because of severe dyslexia, that person has an impairment. Likewise, being overweight is not considered an impairment (unless due to an underlying physical condition, e.g., hypothyroidism), although extreme obesity in excess of 100% ideal body weight is.
Having determined that an impairment exists, the next step in the analysis is to ascertain if the impairment limits one or more “major life activities.” These have classically included activities such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, and breathing.
Third, the limitation must be substantial, meaning sufficiently severe, compared with what an average person is capable of doing. According to the EEOC, a mild type 2 diabetes patient on diet treatment alone and no other restriction has an impairment; but the impairment does not substantially limit any of his major life activities. On the other hand, some impairments are so severe that there is no doubt they substantially limit major life activities, e.g., insulin-dependent diabetes, legal blindness, deafness, manic-depressive syndrome, alcoholism, and HIV infection.
There is litigation aplenty over these issues.
In its seminal 1988 case, the U.S. Supreme Court provided the analytical steps listed above in arriving at its holding that, under the ADA, asymptomatic HIV infection is a disability.2 The case involved a dentist who was sued when he declined to treat an HIV-positive female patient in the office, offering instead to treat her in a hospital without any additional charge. A dental office, like a doctor’s office, is recognized as a place of public accommodations, and therefore falls under the protection of Title III of the ADA.
The court first considered whether HIV infection was a physical impairment. Second, it identified the major life activity upon which the plaintiff relied (reproduction and childbearing) and determined whether it constituted a major life activity under the ADA. Third, it tied the two statutory phrases together, and asked whether the impairment substantially limited these major life activities.
The court held that, in light of the immediacy with which the HIV virus begins to damage the infected person’s white blood cells and the severity of the disease, it is an impairment from the moment of infection, even if the patient was asymptomatic. It also ruled that the HIV infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected, and second, an infected woman risks infecting her child during gestation and childbirth, i.e., perinatal transmission.
In 2004, a case reached the U.S. Third Circuit Court of Appeals regarding Cathy Fiscus, an employee at a Walmart Sam’s Club warehouse store in Pittsburgh, who faced being terminated after 12 years at her job. A lower U.S. district court had ruled in favor of the company, agreeing with Walmart that the woman’s end-stage renal disease had not left her significantly limited in a major life activity. Ms. Fiscus sought a reasonable accommodation from her employer during the period of her peritoneal dialysis, which required her to self administer the 45-minute dialysis process at the workplace. Walmart initially agreed, but later declined. The appeals court overturned the lower court’s ruling, writing, “A physical impairment that limits an individual’s ability to cleanse and eliminate body waste does impair a major life activity.”3
Not all conditions are covered by the ADA’s definition of disability. The list includes temporary physical or mental impairments, current illegal drug use, predisposition to illness, personality traits, advanced age, and pregnancy, to name a few.
To avoid running afoul of the ADA, an employer is required to make “reasonable accommodations” for the disabled employee. This refers to practices that allow a disabled person to perform the essential functions of the job.
Examples of reasonable accommodations include making existing facilities readily accessible to and usable by individuals with disabilities, restructuring jobs, modifying work schedules, and providing qualified readers or interpreters.
A “qualified individual with a disability” is an individual with a disability who, “with or without reasonable accommodation,” can perform the essential functions of the employment position in question. A person is not a qualified individual with a disability, however, if he or she cannot satisfy the basic attendance requirements of a position.
Employers are not required to offer any and all accommodations, such as those that are disruptive to the business, overly burdensome, or prohibitively expensive. Providing a clean and private area in the workplace for self-administered peritoneal dialysis fluid exchange would likely qualify as a reasonable accommodation that should be offered, absent some compelling reason not to.
The protection given by the ADA may be suspended if the condition poses a direct threat, defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”4 The U.S. Supreme Court has noted that this should be assessed by the objective reasonableness of the views of health care professionals.
Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical or legal advice. For additional information, readers may contact the author at siang@hawaii.edu.
References
1. Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. § 12101 et seq.
2. Bragdon v. Abbott et al. 524 U.S. 624 (1998).
3. Cathy A. Fiscus v. Wal-Mart Stores Inc., 385 F.3d 378 (3d Cir. 2004).
4. 42 U. S. C. § 12182(b)(3).
5. Available at www.kidney.org/atoz/content/employersguide.
Question: After many years of diabetes, a 60-year-old office worker develops nephropathy followed by end-stage renal disease, and now requires dialysis. He has opted for peritoneal dialysis rather than hemodialysis, so that he does not have to be away from the workplace for treatment. His diabetes is insulin requiring, and he has occasional hypoglycemic reactions. Although he qualifies for Social Security disability benefits, he prefers to continue working full time. The employer is considering terminating him.
Which of the following is best?
A. The Americans with Disabilities Act prohibits job discrimination against patients with disabilities, so long as they are otherwise qualified for every aspect of the job.
B. Renal insufficiency and diabetes are considered disabilities under the ADA.
C. The employer is obligated to provide full accommodation to enable this employee to continue working.
D. If the accommodations needed for a disabled person are unreasonable, or prove too disruptive or expensive, then the employer is not obligated to provide them.
E. This patient should simply retire and enjoy his SS disability benefits.
Answer: D. Enacted in 1990, the Americans with Disabilities Act seeks to provide clear, strong, consistent, and enforceable standards for ending discrimination against individuals with disabilities.1 The main thrust of the ADA, Title I, is to protect otherwise qualified workers with permanent disabilities from losing their jobs or seeking one, so long as they are qualified to perform the essential (not necessarily all) functions of the job.
In addition, the law prohibits discrimination against people with disabilities from accessing public accommodations (Title III), which include doctors’ offices and health care facilities, as well as restaurants, retail stores, etc. Other areas under the purview of the omnibus ADA include transportation, communications, and access to state and local government programs and services.
The Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA, the section that deals with job discrimination. Its compliance manual sets out guidelines for determining whether an individual in fact has a disability.
The word “disability” has three components, and the term is not synonymous with “impairment.” However, a disability begins with having an impairment, defined as a physiological disorder affecting one or more of a number of body systems or a mental or psychological disorder.
An example given by the EEOC: If a person cannot find a job because that person has the equivalent of a second-grade education and therefore cannot read, that person does not have an impairment for purposes of the ADA. If, however, that person cannot read because of severe dyslexia, that person has an impairment. Likewise, being overweight is not considered an impairment (unless due to an underlying physical condition, e.g., hypothyroidism), although extreme obesity in excess of 100% ideal body weight is.
Having determined that an impairment exists, the next step in the analysis is to ascertain if the impairment limits one or more “major life activities.” These have classically included activities such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, and breathing.
Third, the limitation must be substantial, meaning sufficiently severe, compared with what an average person is capable of doing. According to the EEOC, a mild type 2 diabetes patient on diet treatment alone and no other restriction has an impairment; but the impairment does not substantially limit any of his major life activities. On the other hand, some impairments are so severe that there is no doubt they substantially limit major life activities, e.g., insulin-dependent diabetes, legal blindness, deafness, manic-depressive syndrome, alcoholism, and HIV infection.
There is litigation aplenty over these issues.
In its seminal 1988 case, the U.S. Supreme Court provided the analytical steps listed above in arriving at its holding that, under the ADA, asymptomatic HIV infection is a disability.2 The case involved a dentist who was sued when he declined to treat an HIV-positive female patient in the office, offering instead to treat her in a hospital without any additional charge. A dental office, like a doctor’s office, is recognized as a place of public accommodations, and therefore falls under the protection of Title III of the ADA.
The court first considered whether HIV infection was a physical impairment. Second, it identified the major life activity upon which the plaintiff relied (reproduction and childbearing) and determined whether it constituted a major life activity under the ADA. Third, it tied the two statutory phrases together, and asked whether the impairment substantially limited these major life activities.
The court held that, in light of the immediacy with which the HIV virus begins to damage the infected person’s white blood cells and the severity of the disease, it is an impairment from the moment of infection, even if the patient was asymptomatic. It also ruled that the HIV infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected, and second, an infected woman risks infecting her child during gestation and childbirth, i.e., perinatal transmission.
In 2004, a case reached the U.S. Third Circuit Court of Appeals regarding Cathy Fiscus, an employee at a Walmart Sam’s Club warehouse store in Pittsburgh, who faced being terminated after 12 years at her job. A lower U.S. district court had ruled in favor of the company, agreeing with Walmart that the woman’s end-stage renal disease had not left her significantly limited in a major life activity. Ms. Fiscus sought a reasonable accommodation from her employer during the period of her peritoneal dialysis, which required her to self administer the 45-minute dialysis process at the workplace. Walmart initially agreed, but later declined. The appeals court overturned the lower court’s ruling, writing, “A physical impairment that limits an individual’s ability to cleanse and eliminate body waste does impair a major life activity.”3
Not all conditions are covered by the ADA’s definition of disability. The list includes temporary physical or mental impairments, current illegal drug use, predisposition to illness, personality traits, advanced age, and pregnancy, to name a few.
To avoid running afoul of the ADA, an employer is required to make “reasonable accommodations” for the disabled employee. This refers to practices that allow a disabled person to perform the essential functions of the job.
Examples of reasonable accommodations include making existing facilities readily accessible to and usable by individuals with disabilities, restructuring jobs, modifying work schedules, and providing qualified readers or interpreters.
A “qualified individual with a disability” is an individual with a disability who, “with or without reasonable accommodation,” can perform the essential functions of the employment position in question. A person is not a qualified individual with a disability, however, if he or she cannot satisfy the basic attendance requirements of a position.
Employers are not required to offer any and all accommodations, such as those that are disruptive to the business, overly burdensome, or prohibitively expensive. Providing a clean and private area in the workplace for self-administered peritoneal dialysis fluid exchange would likely qualify as a reasonable accommodation that should be offered, absent some compelling reason not to.
The protection given by the ADA may be suspended if the condition poses a direct threat, defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”4 The U.S. Supreme Court has noted that this should be assessed by the objective reasonableness of the views of health care professionals.
Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical or legal advice. For additional information, readers may contact the author at siang@hawaii.edu.
References
1. Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. § 12101 et seq.
2. Bragdon v. Abbott et al. 524 U.S. 624 (1998).
3. Cathy A. Fiscus v. Wal-Mart Stores Inc., 385 F.3d 378 (3d Cir. 2004).
4. 42 U. S. C. § 12182(b)(3).
5. Available at www.kidney.org/atoz/content/employersguide.
Question: After many years of diabetes, a 60-year-old office worker develops nephropathy followed by end-stage renal disease, and now requires dialysis. He has opted for peritoneal dialysis rather than hemodialysis, so that he does not have to be away from the workplace for treatment. His diabetes is insulin requiring, and he has occasional hypoglycemic reactions. Although he qualifies for Social Security disability benefits, he prefers to continue working full time. The employer is considering terminating him.
Which of the following is best?
A. The Americans with Disabilities Act prohibits job discrimination against patients with disabilities, so long as they are otherwise qualified for every aspect of the job.
B. Renal insufficiency and diabetes are considered disabilities under the ADA.
C. The employer is obligated to provide full accommodation to enable this employee to continue working.
D. If the accommodations needed for a disabled person are unreasonable, or prove too disruptive or expensive, then the employer is not obligated to provide them.
E. This patient should simply retire and enjoy his SS disability benefits.
Answer: D. Enacted in 1990, the Americans with Disabilities Act seeks to provide clear, strong, consistent, and enforceable standards for ending discrimination against individuals with disabilities.1 The main thrust of the ADA, Title I, is to protect otherwise qualified workers with permanent disabilities from losing their jobs or seeking one, so long as they are qualified to perform the essential (not necessarily all) functions of the job.
In addition, the law prohibits discrimination against people with disabilities from accessing public accommodations (Title III), which include doctors’ offices and health care facilities, as well as restaurants, retail stores, etc. Other areas under the purview of the omnibus ADA include transportation, communications, and access to state and local government programs and services.
The Equal Employment Opportunity Commission (EEOC) enforces Title I of the ADA, the section that deals with job discrimination. Its compliance manual sets out guidelines for determining whether an individual in fact has a disability.
The word “disability” has three components, and the term is not synonymous with “impairment.” However, a disability begins with having an impairment, defined as a physiological disorder affecting one or more of a number of body systems or a mental or psychological disorder.
An example given by the EEOC: If a person cannot find a job because that person has the equivalent of a second-grade education and therefore cannot read, that person does not have an impairment for purposes of the ADA. If, however, that person cannot read because of severe dyslexia, that person has an impairment. Likewise, being overweight is not considered an impairment (unless due to an underlying physical condition, e.g., hypothyroidism), although extreme obesity in excess of 100% ideal body weight is.
Having determined that an impairment exists, the next step in the analysis is to ascertain if the impairment limits one or more “major life activities.” These have classically included activities such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, and breathing.
Third, the limitation must be substantial, meaning sufficiently severe, compared with what an average person is capable of doing. According to the EEOC, a mild type 2 diabetes patient on diet treatment alone and no other restriction has an impairment; but the impairment does not substantially limit any of his major life activities. On the other hand, some impairments are so severe that there is no doubt they substantially limit major life activities, e.g., insulin-dependent diabetes, legal blindness, deafness, manic-depressive syndrome, alcoholism, and HIV infection.
There is litigation aplenty over these issues.
In its seminal 1988 case, the U.S. Supreme Court provided the analytical steps listed above in arriving at its holding that, under the ADA, asymptomatic HIV infection is a disability.2 The case involved a dentist who was sued when he declined to treat an HIV-positive female patient in the office, offering instead to treat her in a hospital without any additional charge. A dental office, like a doctor’s office, is recognized as a place of public accommodations, and therefore falls under the protection of Title III of the ADA.
The court first considered whether HIV infection was a physical impairment. Second, it identified the major life activity upon which the plaintiff relied (reproduction and childbearing) and determined whether it constituted a major life activity under the ADA. Third, it tied the two statutory phrases together, and asked whether the impairment substantially limited these major life activities.
The court held that, in light of the immediacy with which the HIV virus begins to damage the infected person’s white blood cells and the severity of the disease, it is an impairment from the moment of infection, even if the patient was asymptomatic. It also ruled that the HIV infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected, and second, an infected woman risks infecting her child during gestation and childbirth, i.e., perinatal transmission.
In 2004, a case reached the U.S. Third Circuit Court of Appeals regarding Cathy Fiscus, an employee at a Walmart Sam’s Club warehouse store in Pittsburgh, who faced being terminated after 12 years at her job. A lower U.S. district court had ruled in favor of the company, agreeing with Walmart that the woman’s end-stage renal disease had not left her significantly limited in a major life activity. Ms. Fiscus sought a reasonable accommodation from her employer during the period of her peritoneal dialysis, which required her to self administer the 45-minute dialysis process at the workplace. Walmart initially agreed, but later declined. The appeals court overturned the lower court’s ruling, writing, “A physical impairment that limits an individual’s ability to cleanse and eliminate body waste does impair a major life activity.”3
Not all conditions are covered by the ADA’s definition of disability. The list includes temporary physical or mental impairments, current illegal drug use, predisposition to illness, personality traits, advanced age, and pregnancy, to name a few.
To avoid running afoul of the ADA, an employer is required to make “reasonable accommodations” for the disabled employee. This refers to practices that allow a disabled person to perform the essential functions of the job.
Examples of reasonable accommodations include making existing facilities readily accessible to and usable by individuals with disabilities, restructuring jobs, modifying work schedules, and providing qualified readers or interpreters.
A “qualified individual with a disability” is an individual with a disability who, “with or without reasonable accommodation,” can perform the essential functions of the employment position in question. A person is not a qualified individual with a disability, however, if he or she cannot satisfy the basic attendance requirements of a position.
Employers are not required to offer any and all accommodations, such as those that are disruptive to the business, overly burdensome, or prohibitively expensive. Providing a clean and private area in the workplace for self-administered peritoneal dialysis fluid exchange would likely qualify as a reasonable accommodation that should be offered, absent some compelling reason not to.
The protection given by the ADA may be suspended if the condition poses a direct threat, defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.”4 The U.S. Supreme Court has noted that this should be assessed by the objective reasonableness of the views of health care professionals.
Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical or legal advice. For additional information, readers may contact the author at siang@hawaii.edu.
References
1. Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. § 12101 et seq.
2. Bragdon v. Abbott et al. 524 U.S. 624 (1998).
3. Cathy A. Fiscus v. Wal-Mart Stores Inc., 385 F.3d 378 (3d Cir. 2004).
4. 42 U. S. C. § 12182(b)(3).
5. Available at www.kidney.org/atoz/content/employersguide.