Disability

What's behind the surge in disability claims?

March 6, 2013: 11:17 AM ET

Changes to the Americans with Disabilities Act have made it harder for employers to contest disability claims.

By Jonathan A. Segal

FORTUNE -- As we approach spring, flowers will not be the only things in bloom. Employers can expect disability claims to sprout up all over the place.

The number of complaints filed under the Americans with Disabilities Act increased by more than 50% between 2007 and 2012 (from 17,453 to 26,379), according to a February report from the Equal Employment Opportunity Commission.

Why the increase in claims? A lot of it has to do with a legal change from 2008. The Americans with Disabilities Act, which was enacted in 1990, prohibits employers from discriminating against individuals who are, were, or are perceived as disabled. A disability is defined as a physical or mental impairment that substantially limits a major life activity.

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In 1999 and then again in 2002, the Supreme Court defined disability very narrowly. Under these decisions and decisions from lower courts that followed, many individuals who we all would probably agree are disabled were not considered as such.

So, in 2008, Congress enacted the Americans with Disabilities Act Amendment Act (ADAAA) in response to the Supreme Court and other cases.. The ADAAA includes provisions designed to define disability as broadly as possible so that now some individuals who most of us would probably agree are not disabled in plain speak may be disabled as a matter of law.

The regulations published by the EEOC take the ADAAA even further. For the EEOC, cases brought under the ADA should focus on whether employers have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability.

When we talk about disabilities, it is not simply a matter of discrimination. Employers also have an obligation to make reasonable accommodations that do not impose an undue hardship on the company; for example, modifying an employee's schedule, eliminating non-essential tasks, or permitting the employee to work reduced hours.

If you are an employer, particularly if you are a larger employer, it's quite hard to prove that the company is subject to undue hardship by accommodating an employee who claims a disability. As a practical matter, the cost of making these accommodations is almost never an effective defense.

It is important to keep in mind that the ADA addresses not only physical but also mental disabilities. More jobs in the U.S. seem to call for the ability to multitask than to lift 50 pounds, so it is not surprising that we are seeing a spike in mental disability claims that relate to what I call "stamina" requirements. In terms of settlement dollars, the largest increase I've seen in my practice relates to anxiety disorder claims.

But as employers accommodate more employees with anxiety and stress disorders, the burdens on other employees will increase, so that companies end up with even more employees who suffer from increased anxiety and stress.

What does this mean for employers? First, companies need to look at whether someone is disabled from a practical rather than a legal standpoint and recognize that most serious medical conditions (and some not-so-serious) will be considered disabilities under the amended ADA. Therefore, managers ordinarily ought to focus on whether and how they can accommodate their staffers, not whether the medical condition is a disability.

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Companies also better take a second look at their job descriptions and make sure that they are not limited to physical requirements. They need to address, where appropriate, the emotional stamina requirements of a job. This is important because, under the law, employers do not have to eliminate essential requirements, only how they are performed.

If a job requires the ability to work long hours under tight deadlines with minimal supervision or support, make it clear. This is not only important for legal reasons but for business reasons as well. If the demands of a job lead an applicant to opt out, it's all for the best.

Feeling stressed? You are not alone. I finished this article at 5:30 a.m.

Jonathan Segal is a partner at the law firm Duane Morris LLP, where he is a member of the firm's employment, labor, benefits, and immigration practice group. This article should not be construed as legal advice.

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