by Ellen Alcorn
Monster Contributing Writer

Workers with disabilities and their employers will have to take a second look at the Americans with Disabilities Act (ADA) of 1990. "The ADA is about to enter adolescence," says Michael Lotito, a partner with the law firm Jackson Lewis and one of the founders of worknetwork, a Web site that examines employment issues. "It's time to think again about the statute, because an adolescent functions differently than a child."

While some worry the Supreme Court's rulings in 2002 have limited the ADA's effectiveness, Lotito thinks the rulings have provided some much-needed guidance, particularly with some of the statute's gray areas, which include:

Direct Threat

This holds that a worker with a disability may not take a job in which the disability may pose a direct threat to other people or property. Lotito uses the example of someone with narcolepsy: If that person operates a crane and suddenly falls asleep, both property and others would be placed at risk. If that same person holds an office job, the direct-threat tenet does not apply.

Echazabel vs. Chevron forced the court to consider whether this tenet applies to the worker with a disability. Mario Echazabel, a long-time employee of Chevron, suffered from hepatitis C. He applied for a job at a Chevron oil refinery, but company officials turned him down, saying the job would expose him to chemicals that might endanger his health. The Supreme Court ruled unanimously in Chevron's favor, in effect extending the direct threat concept to include the disabled worker.

Reasonable Accommodation

In Barnett vs. US Airways, the Supreme Court considered whether a worker with a disability can assume a position even if doing so means that an employee with seniority would be denied the slot for the accommodation.

Robert Barnett was a baggage handler for the airway who badly injured his back while on the job. He transferred to the mailroom, but was soon vying for the same position as two other workers who had more seniority. When the company passed him over, Barnett sued, citing the ADA's "reasonable accommodation" statute.

The Supreme Court ruled that if a company has a well-established seniority system in place, a disability does not trump that system. However, seniority is not an issue if an employee can show one of the following: there is no seniority system, exceptions have been made in the past, or the move is actually a lateral one for the employee.

In both the Echazabel and Barnett cases, the Supreme Court sent them back to lower courts to consider whether the job Echazabel wanted really would have endangered his health or whether the US Airways mailroom indeed has a well-established seniority system.

The Supreme Court has made it clear that companies cannot simply turn away a disabled applicant either on the basis of seniority or the direct threat concept without good reason. "Long-term, this ruling will lead to the fostering of a much safer working environment, because companies will really focus on critical performance factors to measure and select people capable of performing without injury," Lotito says.

Employers should conduct an in-depth study of the functional requirements for each job in their companies. "Employers can either look at this as a glass half-full or a glass half-empty," Lotito says. The half-empty approach says that it is going to cost a lot of money to study functional capacities to determine whether a job might pose a direct threat to a worker. On the other hand, companies that look carefully at what each job requires and then screen employees to ensure injuries won't ensue will enjoy reduced workers' compensation costs, a safer working environment and fewer injuries on the job.

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The purpose of this article is to both provide information and facilitate general dialogue about various employment-related topics. No legal advice is being given and no attorney-client relationship created. Please see the disclaimer for further limitations and conditions.