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    I have been sued under the ADA

    I fired my bulemic employee

    David J. Goldberg, M.D., J.D.Dr. Derm is a hard working dermatologist practicing in a city that has yet to fully recover from the recession. Overhead is up and revenues are down. He is left with no choice but to start terminating some employees. He has 22 employees.  He evaluates his employees and finds that they all perform well. However, he is aware that a particular 27 year old bulimic employee takes continuous breaks to eat small portions of food followed by prolonged bathroom breaks. Dr. Derm is annoyed with this behavior, feels it is disruptive to the work environment, and has decided it interferes with patient-staff flow.  He terminates this employee.

    Before long he is served with a law suit. His former employee alleges that she was terminated for behaviors related to her bulimia.  In the lawsuit, she contends that her eating behavior was protected under the Americans with Disabilities Act. Dr. Derm is now devastated. In his attempt to lessen the financial burdens of his practice, he ends up with a lawsuit. He seeks legal help. What is the Americans with Disabilities Act? Will Dr. Derm lose this lawsuit?

    ADA general legal framework

    The Americans with Disabilities Act of 1990 (ADA) provides a general legal framework for access of individuals with disabilities to public places -- and also for accommodating employees with disabilities in the workplace. Although the ADA contains very specific guidance for physical accommodations, such as wheelchair access, it provides little guidance relevant to workers with conditions such as diabetes.   

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    The employment provision of the ADA applies to employers who have 15 or more employees. The gist of the ADA is that it bans discrimination against a “qualified individual with a disability.” This is defined as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such an individual holds or hires.” The ADA also prohibits discrimination based on a perceived disability; that is, when the employer wrongly assumes an employee cannot do a job because of a disability.  If employees are fired for legitimate work-related reasons, there cannot be an ADA claim, even if the employee happens to also have disability.

    The ADA defines disability as: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such an individual; (B) a record of such impairment; (C) being regarded as having such impairment.” The disability must also last at least 6 months, and not be a natural, self-limited condition such as pregnancy.

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    The ADA does not protect those who engage in illegal use of drugs or the use of alcohol in the workplace. Employees with substance abuse problems may be held to the same standard of behavior as other employees. However, those who have successfully completed a rehabilitation program for drugs, or who are currently enrolled in a program and not currently using drugs, are protected. Of note, courts have differed on whether alcoholism itself is a disability.  Some federal circuit courts say alcoholism is a disability, but others have ruled that it is not.

    GoldbergDavid.jpg
    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...

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