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position was that the barrier involved in a “regarding as” case is not a physical or medical barrier, but rather the employ- er’s alleged discriminatory attitude.
The ADAAA supports this position by making it clear that employers are not required to offer accommodations to employees who claim they were “regarded as” disabled. The interesting result here is that if an employee makes an actual request for a reasonable accommodation, it will greatly reduce an employee argument that he was “regarded as” being disabled, because the employee is the one who requested the accommodation in the first place.
“Regarded as” claims arise when a company takes action that either is based, or can be construed as being based, on an impairment or perceived medical condition. For this reason, com- panies have started to remove any issues regarding medical conditions, need for accommodations or medical leaves of absences from anyone who has input regarding the employee’s job status (such as promotion, termination, changes, etc.). Employee requests will go to a separate person or department so that if an employee is later fired, the person making that decision (such as a man- ager) can claim that he was not aware of any special requests made by the employee, thereby avoiding a “regarded as” claim. Employers can avoid “regard- ed as” claims by basing all decisions on an employee’s actual work perform- ance, rather than an employee’s medical condition or impairment.
If you would like a copy of the ADAAA, please contact Ehlke Law Offices. MF
This article provides only general information about complex labor laws. It should not be considered as a legal opin- ion or legal advice. We strongly recom- mend that readers confer with legal coun- sel on the application of the law to their individual situations and the use or mod- ification of this article.
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