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It's taken awhile for courts to start applying the
ADAAA-the January 1, 2009, amendments to the Americans with Disabilities Act
that rendered everyone with a medical condition disabled for
purposes of the disability discrimination law. With one glaring exception, courts have concluded that the
amendments are not retroactive, and only apply to personnel decisions taken on
or after January 1, 2009. After a bit of a waiting period, courts are now
starting to weigh-in on disability cases under the ADAAA, and, as expected, for
employers it is not pretty.
Consider Wells v. Cincinnati Children's Hosp. Med. Ctr. (S.D.
Ohio 2/15/12). Elizabeth Wells, a nurse at Cincinnati Children's, suffered
from gastrointestinal problems. When she returned to work following gall
bladder surgery and FMLA leave, she committed various errors (e.g., pulling
morphine for a patient that had no orders for it) that called into question her
fitness to work as a nurse in a Critical Airway Transplant Surgery unit. The
hospital believed the errors were related to her post-surgical medicine, Lotronex,
which can cause confusion, sedation, and equilibrium disorders. The hospital
placed Wells on administrative leave and referred to her its employee
assistance program. The hospital refused to reinstate Wells to the transplant
unit after her doctor cleared her to return to work. Ultimately, it found her a
position in a bone marrow transplant unit, albeit at reduced hours and with a
The trial court concluded that Wells's disability
discrimination claim relating to the hospital's failure to reinstate her to her
old position should go to a jury. Notably, the court pointed out that she need
only prove that the hospital "regarded her as having an impairment," and, in
contrast to the pre-amendment ADA, under the ADAAA's "regarded as" prong, "a
plaintiff ... only has to prove the existence of an impairment...; she no longer is
required to prove that the employer regarded her impairment as substantially
limiting a major life activity." In other words, as long as Wells could prove
that the hospital believed she was impaired, the ADA covers her. That burden
was easy for her to meet: "The gastrointestinal problems which caused Plaintiff
nausea, vomiting, and diarrhea clearly qualify as a physiological disorder.
Moreover, to the extent that the side effects of Plaintiff's proper use of
prescription medication adversely affected her ability to work, it would
contribute to a finding that she was disabled." Because the hospital
essentially demoted her following her leave, her ADA claim survived.
The hospital's only sin was that it did not want a nurse
who blacks out and becomes confused when treating and administering narcotics
to critically ill children. Perhaps, however, the hospital doomed itself by
re-employing Wells at all. Because the bone marrow transplant unit also
involved critically ill children, the court was skeptical of the employer's
The ADA has become one of the most dangerous statutes for
employers to administer. It covers virtually any medical condition, actual or
perceived. Any time you are making an employment decision concerning any
employee about whom you know, or believe, to have a medical condition, you will
be best served to take a step back, take a deep breath, and take a few minutes
to consult with your counsel. You do not want to shoot first and have to answer
Visit the Ohio Employer's Law Blog for more
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