AMERICANS WITH DISABILITY ACT (“ADA”)

Under the Americans with Disabilities Act (“ADA”), a covered employer may not discriminate against “a qualified individual with a disability” with respect to the individual's compensation, as well as other terms, conditions, and privileges of employment. A covered employer may not deny coverage or access to health insurance if it provides health coverage. Employers are also prohibited from indirectly discriminating when providing health benefit that has the effect of subjecting an individual with a disability to discrimination.

 A Disability or Discrimination is:

            (1)      a mental or physical impairment that substantially limits one or more

of an individual's major life functions;

(2)      a record of such an impairment;

(3)      the perception that an individual has such an impairment;

(4)      AIDS, HIV;

(5)      discrimination between disabled and non-disabled groups;

(6)      discrimination as to access to insurance document;

(7)      application of permissible limitations unequally;

(8)      transplant and “related” services provisions that are applied to deny coverage for an otherwise covered benefit had it not been “related” to the transplant; and,

(9)      paying disability retiree benefits less than retiree benefits.

A Disability or Discrimination is not:

          (1)      current use of illegal drugs;

          (2)      transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual disorders;     

          (3)      compulsive gambling, kleptomania, or pyromania;

          (4)      psychoactive substance use disorders resulting from current illegal drug use;

          (5)      Homosexuality and bisexuality;

          (6)      discrimination between disabled groups;

          (7)      underwriting, classifying, or administering risks that are based on, or are consistent with, state law;

          (8)      establishing, sponsoring, observing, or administering the terms of a bona fide benefit plan that is based on underwriting, classifying, or administering such risks under state or federal law (so long as pre-empted plans do not employ its pre-emption as a subterfuge);

          (9)      offering an insurance policy that limits coverage for certain procedures or treatments, such as providing mental health care benefits only for a specified amount per year, reimbursement level for a procedure, type of drug, or type of procedure, or noncoverage of experimental drugs and procedures (so long as the limitation does not extend to benefits otherwise covered by the plan)  even though a particular individual with a disability might be adversely affected by it; 

          (10)    differing level of coverage for dependents and beneficiaries who are not employees;

          (11)    transplant and “related” services provisions that are applied to deny coverage for an otherwise expressly non-covered benefit even if it is “related” to the transplant; and,

          (12)    inclusion of pre-existing condition exclusions.

 A Disability or Discrimination may or may not be (consult counsel):  

          (1)      past use of illegal drugs may be a protected disability if the individual has completed, or is currently undergoing, a supervised treatment program;

          (2)      infertility (conflicting authority – 8^th Circuit and Supreme Court)

          (3)      discrimination as to content of insurance document (conflicting authority – DOJ and federal courts)

          (4)      discrimination as to the insurance terms, provisions, and conditions relative to coverage of a dependent; and,

          (5)      discrimination between mental health services compared to health services.  

The ADA protects: 

          (1)      a “qualified individual with a disability” (“an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of a job the individual holds or would like to hold”).  

 The ADA does not protect: 

          (1)      a terminated employee;

          (2)      a disabled employee who is totally disabled and cannot perform their job; and,

          (3)      an employee who is convalescing after an illness, injury, or disability.  

 The ADA may not protect:  

          (1)      Dependents and beneficiaries who are not employees, former employees, or job applicants.

 The ADA applies to:  

          (1)      employers;

          (2)      health plans, if,  

                    (a)      it exercises control over an important aspect of the disabled individual’s employment by dictating the level and type of benefits available to the employer’s employees;

                    (b)      its relationship with the health plan is so intertwined with respect to the delivery of health benefits that it is considered an “agent”;

        (c)      the plan plan interferes with a disabled employee's access to any of his individual employment opportunities; and,

(3)      pension plans that pay disability benefits.   

Covered Employee. A covered employee is an individual who is (or was) provided coverage under a group health plan by virtue of his performance of services for one or more persons maintaining the plan.For COBRA purposes, a self-employed individual who is treated as an employee also is a “covered employee.” This includes independent contractors performing services for a third party or as a partner in a partnership.

Covered Employer. Covered Employers are all private employers engaged in an industry affecting commerce with fifteen (15) or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calenday year, as well as any agent of such person, other than:

(1) the United States, a corporation wholly owned by the U.S. Government, or an Indian tribe,or

(2) a bona fide private membership club (other than a labor organization) that is exempt from tax under IRC § 501(c)(3).

 The ADA is a complex statute and your rights, remedies or obligations depend upon the specific facts involved.  If you have any ADA issues or questions, consult an attorney with experience in employment law.