Let's play claim or no claim under the ADA

A staff lawyer for a government agency starts falling asleep at work. He is diagnosed with sleep apnea, given a device by his doctor (a Continuous Positive Airway Pressure machine) which allows him to sleep, work and concentrate without being affected by the sleep apnea. A little more than two months later, his employer tells him his work performance is unacceptable and that he can accept termination or transfer to a different position resulting in a $30,000 annual salary reduction. He accepts the transfer and sues under the ADA. Employer files a Rule 12(b)(6). This is laid out in the court's ruling on the 12(b)(6) in Orne v. Mark Christie, (E.D. Va. January 7,2013). The court's decision? Motion denied. Why? The state argued that because the machine fixed the medical issue, Orne did not suffer from a disability. Hit the BUZZER now, because that is wrong. The ADA amendments clearly state that mitigating measures for a medical condition are not to be considered in determining ADA coverage. (Just when was the state's law library last updated?) Today its sleep apnea, tomorrow an enlarged prostate? You bet. It is a different world with greatly expanded ADA coverage. Stay awake!

Comments

[Paul Sadler]

Now there's an interesting question...what if the underlying condition was "cured" by the treatment? Diabetics with severe conditions can have transplants; after the transplant, they are no longer diabetic.

Would they still qualify under ADA?

P.

[Mike Maslanka]

I think no coverage because there is not even a chance of the condition popping up again. but a record of a disability and/or a regarded as claim are still viable. Mike

[Pami Maugham]

Actually, transplants do not necessarily "cure" the disease of diabetes. My father's transplant traded an unmanageable disease (end stage renal failure)with a manageable one (diabetes) which was managed by diet and medications. Also, once a person has an organ transplant, thier immune system are artifically suppressed, so any issues from that may also qualify under the ADA.

So, even with a transplant, there could still be an underlying issue or now a new disability to be dealt with.

[Beth]

Since when does a CPAP machine fix the health issue? It doesn't, its just a means of controlling it.

[Jorge.hughes]

What is your take on the perception ofa dissability, assuming that the underlying condition was cured. It will be complicated to show that the employer did not act under this perception, especially if the employee does not disclose the "cured" stage of his illness...
J

[Mike Maslanka]

J,
Your point is well taken. I think that in the next several years we will see that claim asserted with greater regularity. Mike