ADA: The 10 Most Common Disabilities and How to Accommodate

By Norman H. Kirshman & Roger L. Grandgenett II

{1}  The Americans with Disabilities Act ("ADA") is the most significant employment legislation in a decade. This paper discusses what constitutes a disability under the ADA and what reasonable accommodation and undue hardship mean. This paper will also analyze the ten most common disability claims and how employers accommodate these disabilities.

{2}  Title I of the ADA is intended to ensure that individuals with disabilities not be excluded from job opportunities unless they are actually unable to do the job. In a nutshell, no covered entity shall discriminate against a qualified individual with a disability because of the individual's disability with regard to all aspects of employment (job application procedures, hiring and firing, advancement, training, compensation, benefits, etc.). 42 U.S.C.A. § 12112(a). A covered employer must make a reasonable accommodation to the known physical or mental limitation of a qualified individual with a disability unless the employer can show that the reasonable accommodation would cause an undue hardship on the operation of its business. 42 U.S.C.A. § 12112(b)(5)(A). The ADA provides some examples of reasonable accommodation and undue hardship, and these issues will be analyzed later.

{3}  Title I of the ADA protects qualified individuals with disabilities from employment discrimination. Under other employment legislation, such as Title VII or the Age Discrimination in Employment Act, whether an individual is in a protected class is a relatively simple matter. Race, color, sex, national origin and age are, in most cases, easily determined. However, whether an individual is in a protected class under the ADA is more complicated. Disabilities in the Workplace, §1053 (Andrew W. Boden et al. eds., 1996)

{4}  The ADA has a three-prong definition of disability, where satisfaction of any of the three prongs constitutes a disability. The ADA's definition of disability is based on the definition of "handicap" found in the Rehabilitation Act. A judgment under either is precedent for the other. Henry H. Perritt, Jr., Americans With Disabilities Handbook, § 3.3 (2d ed. 1991).

{5}  The first definition of disability defines an individual with a disability as an individual who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment." 42 U.S.C.A. § 12102(2).

{6}  In cases where there is an issue of whether an individual has a disability, the first definition of disability is most often litigated. This definition has three subparts that must be shown by plaintiff.

{7}  A physical impairment is defined by the ADA to include: "[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito urinary, hemic and lymphatic, skin, and endocrine." 29 CFR § 1630.2(h)(1).

{8}  A mental impairment is defined by the ADA to include: "[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." 29 CFR § 1630.2(h)(2).

{9}  The ADA and EEOC regulations do not list all of the "specific conditions that constitute impairments both because of the difficulty of ensuring comprehensiveness and because new disorders might develop in the future." Henry H. Perritt, Jr., Americans with Disabilities Act Handbook § 3.2 (2d ed. 1991). However, examples of covered physical and mental impairments were included in the legislative history of the ADA: orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, drug addiction and alcoholism and HIV infection. Id. (citing House Labor Report at 51; House Judiciary Report at 28). Serious impairments such as cancer and multiple sclerosis, however, have been held not to be disabilities.

{10}  An impairment under the ADA must be a physiological or mental disorder. Tough calls like stress and depression are "conditions that may or may not be considered impairments, depending on whether these conditions result from a documented physiological or mental disorder" or whether they result from job or personal life pressures. Equal Employment Opportunity Commission, Technical Assistance Manual for the Americans With Disabilities Act, at II-3.

{11}  The second subpart of the definition is that the impairment must substantially limit one or more major life activities. 42 U.S.C.A. § 12102(2)(A). The EEOC regulations use the term "substantially limits" to characterize "the extent to which a physical or mental impairment interferes with an individual's ability to perform one or more of the major life activities." Henry H. Perritt Jr., Americans With Disabilities Act Handbook, § 3.2 (2d ed. 1991). The regulations define "substantially limits" as:

{12}  "i) Unable to perform a major life activity that the average person in the general population can perform; or

{13}  ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity." 29 CFR § 1630.2(j)(1)(i) & (ii).

{14}  The impairment is to be made in comparison to normal people. An example would be a person who can walk ten miles continuously, but experiences pain on the eleventh mile. Because this discomfort is typical of the population, it is not a limitation and, thus, not an impairment. Id.

{15}  The EEOC regulations also include three factors influencing a determination of substantial limitation: nature and severity of the impairment, how long the impairment is expected to last, and whether the impairment is characterized as permanent or long-term. 29 CFR § 1630.2(j)(2)(i)-(iii).

{16}  These factors must be considered because "it is not the name of an impairment or a condition that determines whether a person is protected by the ADA, but rather the effect of an impairment or condition on the life of a particular person." Equal Employment Opportunity Commission, Technical Assistance Manual for the Americans with Disabilities Act, at II-4. AIDS, deafness and blindness are by their nature substantially limiting, but "many other impairments may be disabling for some individuals but not for others, depending on the impact on their activities." Id. An example would be where an individual has mild cerebral palsy. Although cerebral palsy may limit the major life activities of one individual, an individual with mild cerebral palsy only slightly interfering with the ability to speak and has no significant limitation on other major life activities is not an individual with a disability under the ADA. Id. at II-5.

{17}  The third subpart is that one or more major life activities must be substantially limited. 42 U.S.C.A. § 12102(2)(A). Major life activities are activities that an "average person can perform with little or no difficulty." Equal Employment Opportunity Commission, Technical Assistance Manual for the Americans With Disabilities Act at II-3. Examples include walking, speaking, breathing, performing manual tasks, seeing, hearing, learning, caring for oneself, sitting, lifting, reading, standing and working. Id.

{18}  The major life activity of working needs to be especially analyzed, as there are many cases where disability is challenged on this matter.

{19}  "It is not necessary to consider if a person is substantially limited in the major life activity of `working' if the person is substantially limited in any other major life activity." Id. at II-6. Thus, if an individual is blind, there is no need to consider whether the individual is substantially limited in working. Id.

{20}  An individual will not be considered to be substantially limited in working if he or she is only substantially limited in performing a particular job for one employer, or unable to perform a specialized job in a particular field. Id. The individual need not be totally unable to work. An individual, therefore, who cannot qualify as a captain of an airline flight because of a minor vision impairment, but who could qualify as a co-pilot, would not be considered substantially limited in working just because he could not perform a particular job as captain. Id. A baseball pitcher who can no longer pitch because of a bad elbow is not substantially limited in working just "because he is no longer able to perform the specialized job of pitching in baseball." Id. "The person must be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes, compared to an average person with similar training, skills and abilities." Id. at 11-6.

{21}  The second type of disability is intended to "include people who have recovered from physical or mental impairments, or who have been misclassified as having such impairments." Henry H. Perritt, Jr., Americans with Disabilities Act Handbook, § 3.2 (2d ed. 1991). Individuals with a record of mental or emotional illness, cancer, heart disease or other debilitating illness or have been misclassified or misdiagnosed as having these illnesses, are protected under the ADA, whether or not the individual is currently substantially limited in a major life activity. 29 CFR § 1630.2(k); 42 U.S.C.A. § 12102(2)(B).

{22}  The third type of disability includes individuals with impairments that do not substantially limit major life activities, but who are perceived as having substantial limiting impairments or an individual with an impairment that substantially limits major life activities only as a result of attitudes of others toward the impairment. 42 U.S.C.A. § 12102(2)(C). This category of disability was needed, as the Supreme Court has stated, because "society's myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairments." School Board v. Arline, 480 U.S. 273 (1987).

{23}  The EEOC regulations indicate three circumstances where an individual may be protected under this definition of disability: where an individual may have an impairment which is not substantially limiting but is treated by the employer as having such an impairment, where an individual has an impairment that is substantially limiting because of attitudes of others toward the impairment, and where an individual has no impairment but is regarded by an employer as having a substantially limiting impairment. 29 CFR § 1630.2(l)(1)-(3).

{24}  The ADA provides three definitions of disability. Although the ADA provides these definitions, the question of whether an individual is considered disabled under ADA is best suited to a case-by-case determination, no matter what the impairment is. Henry H. Perritt, Jr., Americans with Disabilities Handbook, § 3.2 (2d ed. 1991). Whether one is disabled cannot be known though lists of impairments because some impairments may be a disability for one person and not for another. The facts and circumstances of each case must be analyzed to determine whether an individual has a disability.

{25}  The ADA explicitly excludes certain conditions from being disabilities: homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania and psychoactive substance use disorders resulting from current illegal use of drugs. 42 U.S.C.A. § 12211.

{26}  Furthermore, "[t]emporary, non-chronic impairments that do not last for a long time and that have little or no long-term impact usually are not disabilities." Equal Employment Opportunity Commission, Technical Assistance Manual for the Americans with Disabilities Act at II-5. Broken limbs, sprained joints, concussions, appendicitis, influenza, common colds, spasms and "except in rare and unusual circumstances," obesity, are generally not considered disabilities. Henry H. Perritt, Jr., Americans with Disabilities Handbook, § 3.2 (2d ed. 1991). However, if an individual had a temporary impairment that did not heal properly and resulted in a permanent impairment that substantially restricted the use of a limb, the individual would be considered to have a disability. EEOC, Technical Assistance Manual for the Americans with Disabilities Act at II-5.

{27}  Simple physical characteristics such as eye color and hair color are not impairments. Id. at II-2. Moreover, personality traits, "such as poor judgment, quick temper, or irresponsible behavior" are not impairments. Id. at II-2. "Environmental, cultural, or economic disadvantages, such as lack of education or a prison record also are not impairments." Id.

{28}  Courts have found the following not to be disabilities: pregnancy as it is a physical condition not the result of a physiological disorder (Tsetseranos v. Tech Prototype Inc., 4 AD Cases 1635 (D.N.H. 1995); being lefthanded (De La Torres v. Bolger, 781 F.2d 1134 (5th Cir. 1986); chemical hypersensitivity syndrome (McCauley v. Georgia, 4 AD Cases 1470 (N.D. Ga. 1994); average height or strength that renders a person incapable of performing particular jobs (Jasany v. U.S. Postal Service, 755 F.2d 1244 (6th Cir. 1985); very muscular physique which prevented an individual from complying with employer's valid weight requirement (Tudyman v. United Airlines, 608 F.Supp. 739 (C.D. Cal. 1984). illiteracy (Morisky v. Broward County, 80 F.3d 445 (11th Cir. 1996); violent temper (Fenton v. The Pritchard Co., 926 F.Supp. 1437 (D.Kan. 1996); smoking (Matter of Fortunoff v. New York State Division of Human Rights, 642 NYS.2d 710 (A.D. 2 Dept. 1996).

{29}  The ADA prohibits employment discrimination against qualified individuals with disabilities. A qualified individual is "an individual with a disability who satisfies the requisite skill, experience, education and other job related requirements of the employment position such individual holds or desires and who, with or without reasonable accommodation, can perform the essential functions of such position. 29 CFR § 1630.2(m) (emphasis addes).

{30}  An employer must make reasonable accommodations to the known physical or mental limitation of a qualified individual with a disability unless it can show that the accommodation would cause an undue hardship on the operation of its business. 42 U.S.C.A. § 12112(b)(5)(A). A reasonable accommodation is "any change in a job or work environment, or an application process that enables a qualified person with a disability to enjoy equal employment opportunities." BNA, Americans With Disabilities Act Manual, § 20:0007. The ADA specifically lists what may constitute reasonable accommodation:

{31}  "(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

{32}  (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 U.S.C.A. § 12111(9).

{33}  The ADA does not provide an exhaustive list of reasonable accommodations; the list is only general guidance. Henry H. Perritt, Americans with Disabilities Handbook, § 4.14 (2d ed. 1991). Other examples of reasonable accommodation include "permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment of the impairment, making employer-provided transportation accessible, providing personal assistants, and providing reserved parking spaces." BNA, Americans with Disabilities Handbook Manual, at § 20:0008. Note that employers do not need to promote a disabled employee as part of accommodation or to reallocate the essential functions of a position. Id.

{34}  The employer is not required to provide a reasonable accommodation that would constitute an undue hardship on the employer. Undue hardship is defined by the ADA as action requiring significant difficulty or expense. 29 CFR § 1630.2(p)(1). In determining what constitutes an undue hardship, an employer must consider:

{35}  "i. the nature and cost of the accommodation needed.

{36}  ii. the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

{37}  iii. the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type and location of the facilities; and

{38}  iv. the type of operation or operations of the covered entity, including the composition, structure, and facilities of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity." 42 U.S.C. § 12111(10).

{39}  An employer has the burden of establishing undue hardship. Henry H. Perritt, Jr., Americans with Disabilities Act Handbook, § 4.22 (2d ed. 1991). An accommodation may be an undue hardship on one employer and not another employer. Undue hardship, therefore, is to be determined on a case-by-case basis.

{40}  The ten most common disability claims under the ADA will be discussed, along with any relevant case law discussing reasonable accommodation or undue hardship and any other pertinent information or guidance.

{41}  The most common disability claim is a back or spinal injury. These account for 19.1% of ADA charges. Who's Filing Charges With EEOC-And Why, Disability Compliance Bulletin (A Service of the National Disability Law Reporter), September 28, 1995 at 3.

{42}  The accommodation most likely to be required for employees with back and spinal injuries is lifting limitations. In Leslie v. St. Vincent New Hope, Inc., 5 AD Cases 1773 (S.D. Ind. 1996), the court held that the employer did not reasonably accommodate a disabled resident attendant with an injured back when attendant did not receive light duty. The plaintiff testified that she knew of another resident attendant who hurt her back and received a transfer to another unit and that plaintiff was not considered for a vacant position in another unit when she asked supervisor for light duty. Id.

{43}  Besides lifting limitations, there are other accommodations that may be required for back injuries. In Anzalone v. Allstate Insurance Company, No. 93-2248 (E.La. 1995), the court held that a former insurance claims adjuster who injured his back was entitled to a trial on his ADA claim that, as a reasonable accommodation, his employer should have allowed him to work at home. The court found that most of the adjuster's duties required him to be outside the office and evidence existed that other employees had been allowed to work at home. Id. And in Stewart v. County of Brown, 5 AD Cases 1018 (7th Cir. 1996), the court held the county reasonably accommodated a deputy sheriff with neck and back pain after he was assigned to a courthouse security position. The county built a platform to raise his chair, installed mini-blinds on windows and placed film on doors of security room to minimize glare, purchased an ergonomically correct chair, lowered monitors and reduced his work schedule. Id.

{44}  The second most common disability claim under the ADA is psychiatric and/or mental disability. Psychiatric and mental impairments account for 11.7% of the ADA claims and include such impairments as depression, psychological problems, anxiety, post-traumatic stress syndrome and bipolar disorder\manic depression. Who's Filing Charges With EEOC-And Why, Disability Compliance Bulletin (A Service of the National Disability Law Reporter), September 28, 1995 at 3.

{45}  In Marschand v. Norfolk & Western Railway Co., 4 AD Cases 1099 (N.Ind. 1995), the court analyzed the reasonable accommodation required for post-traumatic stress syndrome. The court found that the railroad's efforts to find alternative employment for a locomotive engineer who developed post-traumatic stress syndrome after an accident were more than reasonable accommodation. Id. The employer offered him clerical positions on the condition that he pass a typing test, offered to pay for a typing class, waived the typing requirement and the engineer accepted one of the three clerical positions offered. Id. at 1111.

{46}  In Morton v. GTE North, Inc., 5 AD Cases 524 (N.D.Tex. 1996), the court held that the employer reasonably accommodated the plaintiff who suffered from severe depression. The employer directed the plaintiff to the staffing department so plaintiff could determine how to apply for a transfer, plaintiff and supervisor evaluated positions available at the time of request and did not find any position that plaintiff would accept or she could perform successfully, and plaintiff was unable to find a job she could perform. Id. at 531-532. Because there was no suitable vacant position available to her, employer did not have to grant plaintiff a transfer. Id. at 532. See also Voytek v. University of California, 5 AD Cases 1255 (N.D.Cal. 1994) (University reasonably accommodated director of department who had a depressive disorder by offering him a different position either at comparable salary as previous position or reduced responsibilities and salary).

{47}  If an employee has a psychiatric or mental impairment that is a disability, the EEOC suggests the following reasonable accommodations: [s]chedule modifications, such as eliminating rotating shifts; extra time off at lunch or at some other time for therapy sessions; job modifications, such as reassignment of marginal tasks to other workers; or reassignment to vacant positions." Psychiatric Disabilities, Total Disability's Effect Focus of Conference, Fair Employment Practices: Summary of Latest Developments, June 17, 1996 at 69.

{48}  Furthermore, reasonable accommodations may include environmental modifications for "employees who cannot tolerate noise or distractions, such as putting up partitions or providing offices with doors." Id.

{49}  Neurological impairments account for 11.7% of ADA claims. Who's Filing Charges With EEOC-And Why, Disability Compliance Bulletin (A Service of the National Disability Law Reporter), September 28, 1995 at 3. Epilepsy, severe migraine headaches and nervous system disorders are examples of neurological impairments.

{50}  In Pattison v. Meijer Inc., 4 AD Cases 997 (W.D.Mich. 1995), the court found that the employer provided reasonable accommodation to an employee with a head injury and seizure disorder when it offered two modified work schedules and two reassignments. The employee's disability precluded him from driving at night, and a flexible schedule would have allowed the employee to use alternative transportation. Id.

{51}  However, employers do not have to provide certain accommodations for neurological impairments. In Barfield v. Bell South Telecommunications, Inc., 4 AD Cases 1159 (S.D. Miss. 1995), the court held that it would be unreasonable to allow an employee with migraine headaches to work only on her "good" days because regular attendance at work is an essential job function. And in Jacques v. Clean-Up Group, 5 AD Cases 1594 (1st Cir. 1996), the court held that an employer was not required to accommodate an epileptic cleaning person, who could not drive, by allowing the individual to start after 10 a.m. and to split a shift with another employee. The Jacques court stated these accommodations were unreasonable, as they would eliminate the position's essential function of arriving at 8 a.m. Id. at 1599. The court also held that it would be an undue burden to require the employer to provide transportation for the employee and economically detrimental to hire another individual to drive the employee. Id. at 1600.

{52}  Extremity impairments account for 8.1% of ADA charges. Who's Filing Charges With EEOC-And Why, Disability Compliance Bulletin (A Service of the National Disability Law Reporter), September 28, 1995 at 3. Hand and leg impairments and carpal tunnel syndrome ("CTS") are included under this category of impairments (CTS, however, is often successfully challenged as not being a disability under the ADA).

{53}  In Hudson v. MCI Telecommunications, 5 AD Cases 1099 (10th Cir. 1996), a customer service representative with CTS requested unpaid leave of indefinite duration. CTS prevented the individual from typing and performing keyboard work. Id. at 1100. The court held that unpaid leave of indefinite duration is not a reasonable accommodation under the ADA. Id. Reasonable accommodations, according to the court, are accommodations which "presently, or in the near future," enable employee to perform essential job functions. Id. at 1101.

{54}  If the only accommodation for an individual with CTS is removal of all or a significant portion of keyboard work and keyboard work is an essential job function, this accommodation is unreasonable. Feliberty v. Kemper Corporation, 4 AD Cases 875 (N.Ill. 1995). In Feliberty, the position of medical director required extensive work on a computer. The court held the ADA only requires "accommodations which would allow a disabled employee to perform the essential functions of his job." Id. at 878. Because the position required six to eight hours of keyboard work a day, the court held keyboard work was an essential job function and plaintiff, therefore, was unqualified for position. Id.

{54}  4.4% of all ADA charges are heart impairment claims. Who's Filing Charges With EEOC-And Why, Disability Compliance Bulletin (A Service of the National Disability Law Reporter), September 28, 1995 at 3. When an individual has a heart defect, the accommodation required will probably be restrictions on lifting or strenuous activity.

{55}  In Keiss v. D&H Distributing, 5 AD Cases 897 (D.Md. 1996), the court held that an employer had no duty to accommodate a kitchen installer whose heart impairment precluded him from heavy lifting. Id. The court found that frequent lifting of more than twenty pounds was an essential function of the kitchen installer position, and the ADA does not require an employer to restructure the essential functions of a position by pushing off heavy work to co-employees. Id. The employer had no vacant positions for the employee and was not required to create a position for the individual. Id. at 898.

{56}  Substance abuse accounts for 3.5% of all ADA claims. Who's Filing Charges With EEOC-And Why, Disability Compliance Bulletin (A Service of the National Disability Law Reporter), September 28, 1995 at 3. Substance abuse refers to both alcohol and drug abuse for ADA purposes.

{57}  The ADA specifically excludes an individual who is currently engaging in the illegal use of drugs as being a qualified individual with a disability. 42 U.S.C.A. § 12114(a). An employer cannot "exclude as a qualified individual with a disability an individual who:

{58}  "(1) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;

{59}  (2) is participating in a supervised rehabilitation program and is no longer engaging in such use; or

{60}  (3) is erroneously regarded as engaging in such use, but is not engaging in such use." 42 U.S.C.A. § 12114(b).

{61}  The ADA does not require the employer to accommodate illegal drug use. Employers are allowed to prohibit the use of drugs and alcohol in the workplace and require employees not to be under the influence, permit adverse treatment of unsatisfactory performance related to drug and alcohol abuse, and require compliance with the Drug Free Workplace Act and governmental testing requirements. 42 U.S.C.A. § 12114(c). Additionally, the ADA expresses neutrality on whether it encourages or prohibits drug and alcohol testing. 42 U.S.C.A. § 12114(d).

{62}  Most of the reasonable accommodation in substance abuse disability cases involve providing a leave of absence. In Corbett v. National Products Co., 4 AD Cases 987 (E.D.Pa. 1995), the court held that the employer could have reasonably accommodated an alcoholic employee who had entered a 28-day in-patient treatment program by providing him with a leave of absence, where there was no evidence that his attempt at alcohol rehabilitation would be futile. And in Schmidt v. Safeway Inc., 864 F.Supp. 991 (D.C. Oregon 1994), the court held that providing a leave of absence to obtain medical treatment for alcoholism is a reasonable accommodation if it is likely that following treatment, the recovering alcoholic would be able to safely perform his or her duties. The Schmidt court noted, however, that the employer is not required to pay for rehabilitation. Id.

{63}  In McDaniel v. Mississippi Baptist Medical Center, 4 AD Cases 241 (S.D. Miss. 1995), the court held that the employer did not violate the ADA when it fired an employee for relapsing into illegal drug use. Although the ADA protects individuals who are participating in supervised rehabilitation and no longer engaging in drugs or alcohol, the court held that the plaintiff did not fall within the exception. Id. According to the court, the plaintiff, free of drugs for a few weeks, was not drug-free for the necessary length of time to be considered "no longer engaging" in drugs or alcohol. Id.

{64}  Diabetes claims account for 3.5% of all ADA claims. Who's Filing Charges With EEOC-And Why, Disability Compliance Bulletin (A Service of the National Disability Law Reporter), September 28, 1995 at 3.

{65}  Diabetes is an impairment specifically listed in the legislative history of the ADA as constituting a physical impairment. Henry H. Perritt, Jr., Americans With Disabilities Handbook § 3.2 (2d ed. 1991) (citing House Labor Report at 51; House Judiciary Report at 28). But courts in some instances have found diabetes not to be a disability under the ADA. See Deckert v. City of Ulysses, 4 AD Cases 1569 (Kan. 1995) (a discharged diabetic police officer was not disabled within the meaning of the ADA because no evidence of substantial limitation of work existed; an EEOC guideline stating insulin-dependent diabetes is a per se disability is invalid); Gilday v. McCosta County, 5 ADA 728 (W.D. Mich. 1996) (a plaintiff with diabetes was not disabled under the ADA because there was no substantial limitation in the major life activity of work or any other major life activity; his condition does not prevent him from caring for himself, performing manual tasks, learning or performing any other major life activity).

{66}  Two recent cases have analyzed reasonable accommodation and diabetes. In Siefken v. Village of Arlington Heights, 4 AD Cases 1441 (7th Cir. 1995), the court held that a proposal by a diabetic ex-police officer that he be given another chance after a severe hypoglycemic episode to change his monitoring techniques is not a request for reasonable accommodation. The court held the ADA requires employers to consider changes in its work rules, facilities, terms and conditions of employment, but does not require employers to give employees second chances. Id. at 1442.

{67}  Furthermore, in Myers v. Hose, 4 AD Cases 391 (4th Cir. 1995), the court held that the employer was not required to hold a job indefinitely until a diabetic ex-employee's health problems were corrected. According to the court, it would significantly burden the employer to grant an indefinite period of leave to give the employee time to control his diabetes. The court stated the employer must promptly fill positions to met business demands and cannot be forced to keep a position open for indefinitely. Id.

{68}  Hearing impairments constitute 3% of ADA claims and include complete deafness and significant hearing loss. Who's Filing Charges With EEOC-And Why, Disability Compliance Bulletin (A Service of the National Disability Law Reporter), September 28, 1995 at 3.

{69}  In Bryant v. Better Business Bureau of Greater Maryland, 5 AD Cases 625 (D. Md. 1996), the court held that the employer should not have denied a hearing impaired coordinator the accommodations of a text telephone system (TTY) device to assist the coordinator with telephone calls. The court held that undue hardship was not shown by employer, despite claims by employer that the TTY would have slowed plaintiff down in her work, been awkward and created time delays for calls to be completed. Id.

{70}  In Schmidt v. Methodist Hospital of Indiana, Inc. 5 AD Cases 1340 (7th Cir. 1996), a failure by the employer hospital to transfer a hearing-impaired nurse, who had problems setting up a dialysis machine because of her impairment, from hemodialysis to orthopedics did not violate the ADA. The court found the hospital offered the nurse additionally training in hemodialysis unit but he refused, and hospital offered nurse the opportunity to resign from his position and reapply for a position in orthopedics, which he declined. Id. at 1342. The court held the failure to accept these reasonable accommodations rendered him unqualified. Id.

{71}  Vision impairments account for 2.8% of ADA claims. Who's Filing Charges With EEOC-And Why, Disability Compliance Bulletin (A Service of the National Disability Law Reporter), September 28, 1995 at 3. Vision impairments include total blindness and serious vision problems and accommodations may range from providing reading assistants to purchasing certain equipment..

{72}  In Fink v. New York City Dept. of Personnel, 4 AD Cases 641 (2d Cir. 1995), the court found a city personnel agency that conducted civil service examination made reasonable accommodations to visually disabled candidates. The agency provided the visually disabled with a tape recorder, a tape recording of the examination, and a reading assistant to assist with the tape recorder and to read questions and answers. Id. at 643. The agency also provided a private room to visually disabled candidates and allowed additional time to take the examination. Id. In Courtney v. American National Can Co., 4 AD Cases 1583 (Iowa 1995), an employer reasonably accommodated a warehouse forklift driver's vision disability when it assigned him to a machine operator position, where his vision impairment did not affect the operation of the machine.

{73}  But as is the case with other disabilities, an employer is not required to create a position for a visually impaired employee or reassign individual to another position. In Riblett v. Boeing Co., 4 AD Cases 1679 (D.Kan. 1995), the court held that the ADA did not require an employer to transfer a draftsman, who had no concept of flat pattern development due to vision defects, to a different position. According to the court, reassignment to another position is not required by the ADA and plaintiff did not show employer had vacant positions for which plaintiff was qualified. Id. at 1684.

{74}  2.6% of ADA claims involve blood disorders, including hepatitis. Who's Filing Charges With EEOC-And Why, Disability Compliance Bulletin (A Service of the National Disability Law Reporter), September 28, 1995 at 3.

{75}  It is important to note that an employer may refuse to assign or continue to assign an individual to a position involving the handling of food if the individual has hepatitis a or any other covered pathogen and if employer cannot eliminate the risk of transmission through reasonable accommodation. 42 U.S.C.A. § 12113(d)(2).

{76}  In a Rehabilitation Act case, the court held that the U.S. Marshals Service did not have to reassign an employee with hepatitis. Fedro v. Reno, No. 93-1489 (7th Cir. 1994). In Fedro, the court found that all full-time positions available risked the transmission of hepatitis during a "scuffle or confrontation" and the employer was not required to combine two available part-time positions into one full-time position.