Publications

The issue of whether the Americans With Disabilities Act (the “ADA”) applies to employees on long term disability (“LTD”) or Social Security is receiving increasing attention. Until the federal Equal Employment Opportunity Commission issues its anticipated guidance on the interplay between the ADA and these benefits, the employee’s benefit status under either an LTD policy or with Social Security should be merely one factor to consider when determining whether the ADA will also come into play.

Q When is a Disability Not a “Disability?”
A Employers must proceed with caution because the definitions of what constitutes a disability under the ADA, the Social Security Act, and the employer’s LTD insurance policy are not the same. The ADA defines a disability as a physical or mental impairment that substantially limits a major life activity, while the Social Security Act defines the term to mean the “inability to engage in any substantial gainful activity” because of a physical or mental impairment. To make matters more complicated, private insurance carriers are not bound by any particular definition and the result is that the term is defined differently from carrier to carrier and, sometimes, from policy to policy. Consequently, an employer has no assurance that a person who has been ruled disabled for benefits purposes is necessarily precluded from fitting within the ADA definition of a “qualified individual with a disability,” that is, one who can perform the essential functions of the job with or without a reasonable accommodation.

Q Are individuals with long term disabilities covered by the ADA?
A Maybe. Employers should not assume that because the employee is receiving LTD or Social Security disability benefits, he or she by definition cannot be considered a “qualified individual with a disability” under the ADA. The mere fact that an insurance company or the Social Security Administration has decided to award disability benefits is not synonymous with a determination that the employee is not “qualified’ for the job or that no accommodation is required under the ADA. Each scenario presented to the employer must be assessed based on its facts to determine whether the employee is truly taking inconsistent positions in an effort to “double dip,” or whether the ADA accommodation request is one that can be reconciled with the employee’s “total disability” for LTD or Social Security purposes.

Q Where an employee receiving LTD benefits also is covered by the ADA, is an employer required to give an indefinite medical leave of absence as a reasonable accommodation?
A Interpretative guidelines issued previously by the Equal Employment Opportunity Commission specifically provide that a reasonable accommodation includes permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment. The guidelines, however, do not expressly address whether an employer is required to provide an indefinite leave of absence as a reasonable accommodation. Some courts addressing the issue have held that an indefinite leave is not reasonable and poses an undue hardship for the employer. Despite these cases, employers should be wary of a blanket policy that automatically excludes indefinite leaves of absence for employees with disabilities. Rather, employers are advised to carefully consider and weigh all requested accommodations.