The Americans with Disabilities Act (ADA) Amendments Act of 2008 broadened the definition of being “regarded as” having a disability. Accordingly, employers need to take extra care not to inadvertently step into a “regarded as” claim by making statements indicating they perceive an individual as disabled.
One common trap for the unwary employer is discussions with employees concerning its employee assistance program (EAP). Many employers offer EAPs, wherein employees may seek counseling or other assistance for issues ranging from substance abuse to emotional or behavioral problems to simple stress management. It can be a wonderful resource for employees. The key for employers is making sure they avoid making reference to potential mental or physical disabilities.
Supervisors can, and sometimes should, remind employees of the availability of the EAP. They can refer to the EAP as a resource for helping employees solve workplace or other problems. But they should not get any more specific than that (don’t say, e.g., “the EAP can help you get a handle on your depression”).
Supervisory training can be an excellent way to teach the do’s and don’ts of navigating the ADA in its expanded form. Stay tuned for another upcoming post on dealing with the accommodation process.