Disability Legislation:
State Laws May be Tougher than Federal ADA

Employees with disabilities have more than physical limitations to overcome. The legal system itself may be just as disabling.

By Susan L. Gilpin, CEO, Certification of Disability Management Specialists Commission (CDMSC)

At times, the Americans with Disabilities Act (ADA) can seem like a moving target as court rulings impact the interpretation and scope of the federal law that defines disability and demands that employers accommodate employees with disabilities. The legal debate can distract employers from an equally important issue: state law requirements that are sometimes harsher than those of the ADA.

"The rule of thumb for employers is that the most stringent law is the governing law," states Rheta Baron King, a California-based ADA expert. "In some cases, the most stringent law may be the state law, particularly given the latest Supreme Court ruling, which appeared to narrow the scope of the ADA." This is particularly important in states like California, which has disability and employment-discrimination laws that are consciously different from the federal ADA, adds King, a past chair of the Certification of Disability Management Specialists Commission (CDMSC).

Differences between federal and state disability laws took the spotlight following a January 2002 ruling by the U.S. Supreme Court, which narrowed the view of how disability is defined under ADA. In the ruling, the Supreme Court ordered a lower court to reconsider a decision in favor of a woman with carpal tunnel syndrome who sought accommodations from her employer, a Toyota plant in Kentucky. (See TOYOTA MOTOR MFG., KY., INC. v. WILLIAMS [534 U.S. 184 (2002)]).

The Court of Appeals for the Sixth Circuit had ruled in favor of the employee, finding that impairments substantially limited her ability to perform manual tasks that were part of her job. It also granted her partial summary judgment on the issue of whether she was disabled under ADA. In the Supreme Court’s reversal, Justice Sandra O’Connor wrote: "We conclude that the Court of Appeals did not apply the proper standard in making this determination because it analyzed only a limited class of manual tasks and failed to ask whether respondent’s impairments prevented or restricted her from performing tasks that are of central importance to most people’s daily lives."

Miguel Escalera Jr., a labor and employment attorney who represents employers in disability discrimination litigation, says companies should not regard the ruling as a reason to "relax or get the sense that they don’t have to worry about the ADA." To the contrary, "the ADA is as vital as it ever was," comments Escalera, managing partner of the Hartford, Conn.-based firm Kainen, Escalera & McHale, P.C. "The ADA greatly increased employers’ obligations over what they had historically been. The Supreme Court has not limited ADA so much as it has clarified some instances where lower courts had gone astray as to what the ADA means."

The Supreme Court ruling underscores the importance of current and future cases on the dockets of state, district and appeals courts, which may eventually find their way to the Supreme Court. Clearly, the issue of disability in the workplace — the definition of disability, who is considered disabled and under what circumstances, and the obligation of employers — will be debated and shaped in the courts for years to come.

More importantly for the present, many employers must deal with a two-tiered standard in disability law. On the one hand is the sweeping ADA, which addresses topics from employment discrimination to access to public buildings. On the other are state laws that may be more stringent in defining disabilities and mandating employer actions. Thus, employers cannot afford to overlook the requirements of state laws — or the latest rulings from state courts.

States such as California and Massachusetts, for example, apply substantially broader language than ADA does to the definition of disability. This affects not only companies headquartered in those states, but also firms with facilities there. If a company is headquartered in one state but has an office or facilities in California, an employee in that state would be covered by California law.

"If a company does business in California or in Massachusetts, they have to be aware of the state laws. If they act as if they’re dealing with just federal law, that’s not going to be good enough," observes Jeffrey Freedman, an attorney with the Los Angeles-based law firm of Liebert, Cassidy, Whitmore.

Add to this the challenge of state laws that continue to be shaped and interpreted in the light of court rulings and legislative actions. "In general terms, many of the state statutes were enacted before the ADA, and in many instances they were more vague and susceptible to broader interpretations than the ADA," adds Escalera. "The process of defining the differences between state and federal law is ongoing, and one that’s really at its infancy. It’s a process that is going to continue to evolve over the next 20 years. No one can predict where this is going to come out state by state."

The following is a brief review of some state disability laws that differ in either definition or requirements from the federal ADA.

California

Under the California Fair Employment and Housing Act (FEHA), the standard for measuring a disability is based on whether it makes a major life activity "difficult." Sounds clear, right? Not exactly. This contrasts with federal law stipulating that a condition must substantially limit one or more major life activities. But wait, there’s more. California law also specifically mentions certain diseases and/or conditions — such as HIV/AIDS, hepatitis, diabetes, bi-polar disorder, and heart disease — that are covered under the state regulation, whether or not these conditions are chronic or episodic.

Then there’s the money issue. Specifically, a maximum payment. Unlike ADA, California law has no cap on the amount of punitive damages that can be awarded to a plaintiff in an employment or other discrimination case.

California law also stipulates that mitigating factors — such as medication or assistive devices like eyeglasses, hearing aids or artificial limbs — not be taken into account when considering whether a person is disabled under the law. Take a truck driver, for example, who is not hired because he needs eyeglasses in order to see well enough to drive, hypothesizes Freedman. Under ADA, the driver would not be considered disabled because with glasses he can drive. But in California, if it turns out that his near-sightedness was the motivating reason not to hire him, he would be considered disabled and could pursue an employment discrimination case against the company. If the trucking company hires the driver, however, his near-sightedness would be subject to California’s legal requirements for reasonable accommodation to perform his duties — which in this case would probably be eyeglasses.

For companies in California, good business practices go beyond just knowing the letter of the law on employment discrimination, job accommodation requirements and the definition of disability. Freedman suggests that companies make sure they have written job descriptions which delineate the essential functions of each job. Further, companies must ensure that their job applications, interview processes and hiring practices are discrimination-free, and that no questions are being asked which could be viewed as in violation of the federal ADA law or California’s FEHA.

Another fact for California employers to keep in mind is that the state courts have historically been more "plaintiff friendly" than federal courts. Slightly more than half the state disability discrimination cases in California that have gone to trial have resulted in a favorable ruling for the plaintiff, King notes. "We also have to remember, in both instances of the federal ADA and California cases, this is a small fraction of the overall number of cases. Most get resolved through settlement or the court dismisses them at summary judgment."

Massachusetts

Massachusetts takes a stance similar to California’s and does not consider assistive devices or medication when determining if someone is disabled. "An individual who has a disability under Massachusetts law is entitled to reasonable accommodation unless it imposes a hardship. Thus, they could request accommodations that they would not need if they took medication or used assistive devices," Escalera explains.

Unlike the ADA, under Massachusetts law, individuals with no outward manifestation of any impairment may meet the definition of disability and be entitled to workplace accommodations. "An individual with a serious heart condition that is controlled by medication and who is able to perform normally would not be considered disabled under the ADA," he adds. "However, if the absence of medication would render the same individual substantially unable to engage in physical exertion, they would be considered disabled under Massachusetts law. How is the Massachusetts employer to know which employees are disabled? What accommodations will the Massachusetts courts require in such circumstances? These issues are yet to be decided."

Michigan

In Michigan, employers must comply with the Michigan Persons with Disabilities Civil Rights Act of 1976, even if the company only has one employee. "This is the most major distinction between our statute and the federal statute," says Harry R. Smith, director of membership services for MARO Employment and Training Association, a network that provides employment and rehabilitation training to people with barriers, including those who have sustained workplace injuries.

Smith adds that the Michigan disability law was part of a series of legislative actions on civil rights and discrimination over several years, which helped to raise awareness of the laws. "We were on a roll for about eight years, enacting one piece of legislation after another, making it easier for people with disabilities to be involved in the larger society," says Smith, a former deputy in the State Vocation and Rehabilitation Agency.

Other States

Connecticut and New York are among the states with broader definitions of disabilities than the ADA. In Connecticut, for example, disability is defined to include any long-lasting impairment of infirmity without regard to the impact of the condition on the individual’s life activities. In New York, the definition of disability includes any physical, mental or medical impairment that is demonstrable by medically accepted clinical or laboratory diagnostic techniques.

The variation in disability laws from state to state and between state laws and ADA puts the burden of knowing squarely on the shoulders of employers. This includes knowing not only how the state law is currently being read and enforced, but also being aware of cases and circuit-court rulings that may alter current interpretations.

"Employers are trying to operate consistently with the ADA, and hoping that eventually the interpretations of state law will be consistent as well," Escalera observes. "But in many cases, state laws are going to be interpreted quite differently."

More Business & Health articles on Disability:

The legal advantage of disability management (July/August 2001)

Disability Management: It takes a pro to solve the puzzle (Feb. 1, 2000)

Resource Links:

The Americans with Disabilities Act: Business Connection
http://www.usdoj.gov/crt/ada/business.htm
Find ADA documents, standards, business briefs, checklists, guidelines and more.

The Certification of Disability Management Specialists Commission (CDMSC)
http://www.CDMS.org
The Certification of Disability Management Specialists Commission (CDMSC) is the only nationally accredited certification organization for disability management specialists.

Susan Gilpin. Disability Legislation: State Laws May be Tougher than Federal ADA.

Business and Health

2002;5.