Law Office of Dale M Rodriguez
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Disability

There are numerous laws,  both federal and state, that protect individuals with disabilities in different ways. My disabiilty law practice focuses primarily on employment laws that protect individuals with disabilities. I will focus here primarily on federal disabilities laws because the disabilities laws in Florida and Texas either overlap the federal laws or possibly offer somewhat lesser protections to employees due to recent changes significantly broadening the reach of the federal laws.

The primary federal law protecting individuals with disabilities in employment are the Americans with Disabilities Act of 1990 ("ADA"), the ADA Amendment Act of 2008 ("ADAAA"), and Rehabilitation Act of 1973. The ADA and ADAAA apply to all employers with 15 or more employees in the current or preceeding calender years whereas the Rehabilitation Act only applies to federal government contractors and federal government agencies.

In basic form, the ADA is on one hand a non-discrimination statute and on the other hand somewhat of an affirmative action-type statute. The ADA prohibits employers from discriminating against protected employees (including applicants) in the terms, conditions, compensation and opportunities of employment. However, the statute goes further and also requires the employer to affirmatively provide an identified protected employee reasonable accomodation that would permit the employee to perform the essential duties of a job.
 
Until passage of the ADAAA, the reach of the ADA was severely limited by court rulings that retricted the definition of persons protected by the Act. The ADAA was purposely passed by Congress as a commandment to the courts to construe the ADA broadly in deciding which employees are or are  not protected by the ADA. The key issue is the ADA's requirement that an employee must be substantially limited in a major life activity to be protected by the Act. Under the ADAAA, courts must make this determination in favor of the employee by comparing him/her to "most people" without regard to mitigating measures (i.e., medication, assistive technology or behavioral modification).

In addition to protecting employees with active covered impairments, the ADA also protects those with a record of a disability as well as those whom the employer regarded as having a disability (unless the duration of the regarded as impairment was 6 months or less). Under the ADAAA, episodic and remissive disorders that otherwise meet the definition of a disability, at least those greater than 6 months in duration, are protected under the Act.

Finally, it is important to understand that for an employee to be protected by the ADA, he/she must be otherwise qualified for the job. That is, with or without reasonable accomodation (as the case may be), the employee must be able to perform the essential functions of the job.

It is easy to see why the ADA in its orginal form was seriously restricted by courts: the law is a recipe for litigation because it must be applied uniquely to each individual situation. By restricting the reach of the ADA, courts closed the floodgates and limited ADA litigation to a trickle. With the passage of the ADAAA, the floodgates are again wide open and a surge of ADA cases will flood the courts for years to come. The sheer number of individuals with disabilities that may be protected by the ADA under the new amendments means that all employers with 15 or more employees are realistically, not just theoretically, at risk.

I have been litigating under the ADA almost since its inception. In fact, I represented the employee in one of the very early ADA cases in Texas to be appealed to the U.S. Court of Appeals for the 5th Circuit. If you are an employee (or applicant) and feel you have been discriminated against because of a disability (actual or perceived) or not given a reasonable accomodation that would otherwise allow you to perform the job, please contact me for a free consultation.

If you are an employer and are serious about attracting, accomodating, retaining and advancing employees with disabilities within your organization, I provide consultation, guidence, training and implementation services at a  reasonable cost. 

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