Regarded as Disabled Employees
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What Does "Regarded as Disabled" Mean?
"Regarded as disabled" is a special kind of disability discrimination where an employee who is not actually disabled is perceived as being disabled and discriminated against.
If Someone Isn't Actually Disabled Why Would They Be Perceived as Disabled?
While this may seem counter-intuitive, the word "disabled" has a special meaning under the ADA (Americans with Disabilities Act). It does not mean every person who has any kind of physical or mental problem. Instead, "disabled" means having specific kinds of physical or mental problems that prevent a person performing a major life function. Major life functions include: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
Because someone can have a physical problem which falls short of being a "disability" an employer could mistakenly believe that a person is actually disabled. Also, if an employee was formerly disabled but has since recovered, an employer may incorrectly continue to believe that the employee is still disabled.
What Is the Purpose of the ADA If So Many Kinds of Physical Problems Are Excluded?
The primary purpose of the ADA is to create a level playing field for people who have been traditionally discriminated against. The idea is that a person in a wheelchair needs special protection from discrimination, while someone who wears a knee brace and can walk, even with a limp, does not need special protection.
The same distinction applies to someone who is blind as compared to someone who can see with glasses. The law is attempting to prevent discrimination, not to force employers to accommodate every single employee who has some kind of physical or mental impairment.
So What Should I Do If I Think an Employee Is Disabled?
If the employee is performing satisfactorily, then you should do nothing. If you fire an employee just because you think they might be unable to perform a "major life function" this is a form of discrimination under the ADA.
If the employee is not meeting the requirements of his or her position, the decision is more difficult. While there are some exceptions, the law generally requires that you work with the employee to figure out if it is possible to accommodate his or her disability.
Why Can't I Just Ask an Employee if He or She is Disabled?
Because this is like asking the employee about race or religion: it is protected by law. You can offer an employee the opportunity for an accommodation but it is up to the employee to take you up on it. Once an employee asks for an accommodation, you can ask for medical exams to determine what sort of accommodation an employee requires; for example, a medical exam could determine how much weight an employee can lift, or how long they can remain standing.
Do I Have to Offer Accommodations to an Employee Who is Not Actually Disabled?
As long as you regard the employee as disabled, you should treat them as if they are disabled and not discriminate against them. In some states, a "regarded as" disabled employee must be treated identically to an actually disabled employee. However, some states offer slightly less protection to "regarded as" disabled employees.
The bottom line is: if you think an employee may be disabled, you should work constructively with the employee to see if it is possible to accommodate any actual or perceived disability.
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Last Modified: 08-10-2015 11:10 AM PDT
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