Remember That Employees Do Not Have to Be Disabled to Be Protected Under the Americans with Disabilities Act

On August 31, 2010, a federal district court in Indiana decided that an employee whose cancer was in remission must be considered by his employer as “disabled” under the Americans with Disabilities Act, as amended in 2009.  More than a year after the employee had surgery for stage III renal cancer and having fully returned to full duty work as a service technician, the employer requested that the employee begin working 65 to 70 hours per week rather than the 40 hours per week that he had been working.  The employee then submitted a doctor’s note saying that he was limited to 40 hours per week, which the employer said that it could not accommodate.  The employer did, however, propose that the employee work out of an office that was located an hour further from the employee’s home, where he could work 40 hours per week.  The employee refused and simply stopped showing up for work.  The employee then sued the employer for violating the Americans with Disabilities Act, and the court agreed that although the employee was not substantially impaired in any major life activity, the fact that he had previously suffered from cancer required the employer to consider the employee as disabled.  The court ruled that a trial was needed to determine whether the company’s offer to move the employee’s work location was a reasonable accommodation.

This case highlights the fact that employers need to be extremely careful in considering whether their employees may be considered a qualified individual with a disability under the Americans with Disabilities Act, as amended in 2009.  The employee in the highlighted case may be able to force his employer to consider other reasonable accommodations (or pay him a lot of money), even though his physician found him to be cancer free.  Therefore, once a person suffers from cancer or any one of many other bodily conditions, employers need to be careful of considering them to be “cured.”  Now, instead of a person having a past record of a disability, which would not require a reasonable accommodation, an employer may be faced with having to accommodate an employee who used to have a bodily condition.  It is more than semantics.  You must be careful in these situations.

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