This is a guest post by Toni Ahl, President at EEO Advantage. The views, thoughts, and opinions expressed in the text belong solely to the author and do not necessarily reflect the view of OutSolve or its employees. 

I decided that, since it was American Heart Month, I would talk about heart disease as it relates to the statutes that are enforced by the Equal Employment Opportunity Commission (EEOC). Charges dealing with heart issues may be filed under the Americans with Disabilities Act of 1990, as amended, (ADA) and/or the Genetic Information Non-Discrimination Act (GINA). Before examining how these statutes may be applied, let’s first look at a few facts about heart disease.

According to the American Heart Association, heart disease is the leading killer of Americans. One person dies every 36 seconds due to cardiovascular disease. Coronary heart disease is the most common type of heart disease. About 18.2 million adults in the United States over the age of 20, have coronary heart disease. About 2 in 10 deaths from coronary heart disease happen in adults less than 65 years old.  Heart disease affects people of all races and sexes. The key risk factors for heart disease are high blood pressure, high cholesterol, and smoking. Some medical conditions and lifestyle choices that may put individuals at a higher risk for heart disease are diabetes, overweight and obesity, unhealthy diet, physical inactivity, and excessive alcohol use. As you can see from the information above, the signs that someone may be disposed to having heart issues may not be observable.

ADA, GINA, and Heart Disease

The ADA provides coverage to individuals who have a physical or mental impairment that substantially limits one or more major life activities. An individual who has a record of such a disability is also covered under the ADA. When determining if a person is substantially limited, we compare the person’s ability to perform daily life activities to those in the general population. Some factors to consider in this analysis are the condition, manner, and duration of the condition; a consideration of the difficulty, effort, or time required to perform the major life activities; the pain experienced when performing the major life activity; the length of time the major life activity can be performed; or the way the impairment affects the operation of a major bodily function.

Employers have an affirmative duty to provide reasonable accommodation to an employee so that they may be able to perform the essential functions of their job. Employees with disabilities that are not obvious have a duty to request a reasonable accommodation. Reasonable accommodations may be requested by applicants or employees who meet the definition of someone with a disability or someone with a record of a disability. When a reasonable accommodation is requested, the employer is supposed to enter into the interactive process with the applicant/employee to determine what reasonable accommodation may be available to assist them to perform the essential functions of their job. Employers are not obligated to provide the reasonable accommodation the employee requests but the accommodation provided must be effective. Employers may raise two defenses related to reasonable accommodation requests. They are undue hardship or a direct threat. These defenses like requests for accommodation are analyzed on a case-by-case basis.

GINA provides coverage to individuals who may be predisposed to a medical condition but who do not currently have the medical condition and therefore are not substantially limited in a major life activity. GINA covers conditions that are known to be hereditary as well as those that are not currently known to be hereditary. The employer may not acquire or use genetic information about an applicant or employee.

Disclosure of medical records and records related to the genetic information of an applicant or employee is expressly prohibited by both statutes. Disclosure applies to medical and genetic information too.

Heart disease may not be observable however may rise to the level of a disability under the ADA. If the employee is substantially limited in one or more major life activities, they could meet the first prong of the ADA as being a person with a disability. If the person has surgery to correct the condition, they may be treated differently by the employer by not being hired because of their record of heart disease. An employer may fail to promote someone in this same scenario because they are afraid that the stress of a new position might cause a return of the employee’s former disability. GINA could be violated if an employer knows about the applicant or employee’s family medical history concerning heart disease and then fails to hire them or takes an adverse action like failing to promote because they are aware of that history.

I think we need to remember that many disabilities are not observable. Sometimes employees are reluctant to disclose disabilities because they fear their treatment in the workplace may change. Both the employer and applicant/employee bear responsibility when the reasonable accommodation begins. Having a widely disseminated policy regarding reasonable accommodation and providing training to management and employees alike about the policy may be very helpful in avoiding claims about disability and reasonable accommodation. Training for management employees about GINA is also recommended in order to avoid claims of discrimination. Management needs to understand the laws regarding disclosure of medical information and records and what medical information and records are.

Requesting an accommodation under the ADA is a form of participation in the EEO process and gives the applicant or employee protection under the anti-retaliation provision of the ADA. Applicants or employees who complain about being denied an accommodation are afforded protection under the ADA because they opposed a practice they felt to be discriminatory.

If you have questions about ADA or GINA, feel free to contact Toni at (502) 553-7648 or eeoadvantage@gmail.com.