In 1999, the U.S. Supreme Court in Bragdon v. Abbott attempted for the first time to define the types of conditions protected by the Americans with Disabilities Act (ADA). The high court’s ruling in Bragdon involved a dispute between a dentist and an asymptomatic patient.

The patient disclosed her HIV status on the patient registration form and the dentist in turn told her she would have to be treated at the local hospital and would be responsible for any costs not covered by insurance.

She filed an ADA claim in federal court. The Supreme Court agreed with the patient, finding her to have a disability under the ADA even though her HIV was asymptomatic. The court held that the patient’s asymptomatic HIV substantially limited her in the major life activity of "reproduction and the sexual dynamics surrounding it."

The high court further warned that asymptomatic HIV may well substantially limit other major life activities besides reproduction.

This case was unique because it was the first time the high court interpreted the ADA’s definitions of "disability" and "major life activity." Previously, lower courts were split about whether reproduction constitutes a major life activity. After Bragdon, the question of whether people who are incapable of reproduction will be considered disabled is still somewhat in doubt.

Given the Supreme Court’s warning that courts could find that asymptomatic HIV substantially impairs major life activities other than just reproduction, employers should consider all employees with asymptomatic HIV as disabled.

Even though the ADA has been on the books for years, many employers are unaware of their responsibilities under the law.

Consider for a minute how you would handle the following scenario: An employee tells you he suffers from an anxiety disorder that causes his mind to wander. As a result he makes repeated errors on detailed or complex projects, even after repeated counseling. His doctor says the errors are the result of his anxiety disorder.

The Equal Employment Opportunity Commission (EEOC), the federal agency charged with implementing the Americans with Disabilities Act, has decided that this employee has a disability that may require you to accommodate him by providing:

* a reduced work schedule;

* a leave of absence beyond that provided by your policy manual; and/or

* time off to seek psychiatric treatment.

How do you know whether the employee has a disability under the law and what accommodations to put in place?

The ADA defines "disability" in three distinct ways:

1. A physical or mental impairment that substantially limits one or more major life activities. "Major life activities" are activities such as standing, sitting, walking, lifting, reaching, talking, eating, breathing, hearing, standing, seeing, working, learning and reproducing.

The most recent EEOC guidelines for psychiatric disabilities expand definition of a "major life activity" to include learning, thinking, interacting with others and sleeping. There is no exhaustive list of "major life activities."

2. Persons with a history of mental or physical impairment such as cancer, or an earlier confinement to a state hospital.

3. Persons regarded as physically or mentally impaired, even if they are not actually impaired, such as an employee diagnosed as HIV positive, but who has not developed the symptoms of AIDS.

As with "major life activities," there is no list of covered disabilities, leaving the employer to analyze each disability on a case-by-case basis.

In considering each situation, you must focus on the abilities of the particular individual, not simply the medical condition. Usually the employee brings a doctor’s note that states simply the employee is disabled and needs to take a leave of absence.

You are well advised to request the employee meet with a medical professional of your choice to review the employee’s condition solely for the purpose of determining:

* whether the employee is disabled under the ADA.

* what accommodation the employee may require to perform the essential functions of the job.

Essential job functions are activities or behaviors the employee must be able to perform to do the job. Ask the employee to sign a medical release allowing your physician to speak with the person who is treating the employee so both professional can determine what is best for the employee.

Many physicians, and especially psychiatrists, are not well-educated about the ADA. It is advisable to ask legal counsel who specializes in ADA issues to write a letter to the retained physician, explaining the ADA and the specific information you are requesting.

Be careful the retained professional does not release any medical information about the employee except whether the employee is disabled within the meaning of the ADA and the accommodations that would allow the employee to perform the job’s essential functions.

Employers should feel comfortable seeking advice from medical/legal professionals who can help with this analysis because there is no clear-cut answer as to who is or is not disabled under the law.

Employers’ job descriptions should explicitly list the essential functions required to perform each job. Use the list of "major life activities" show under " What Is a Disability?" as your guide when drafting job descriptions so you list all activities required.

Without a job description, the courts and EEOC may presume the description was drafted after the disability became known to try to remove the employee from the position to save money instead of accommodating the employee.

Employers are required by the ADA to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified employee unless the employer can prove the accommodation would be an undue hardship.

The best way to determine "reasonable accommodation" for disabled employees is to ask them what they need. They are in the best position to make suggestions because they are the ones who have to live with their individual disabilities.

-- Have a written policy explaining the Americans with Disabilities Act (ADA). Define relevant terms and discuss when fitness for duty examinations may be required, as well as the employer’s commitment to reasonable accommodation.

-- Make sure you have job descriptions for all positions. Job descriptions must state the essential functions of the job. For example: sitting 80%; talking 100%; hearing 100%, complex problem-solving 50%; ability to get along with others 100%.

-- Provide training for managers and supervisors so they understand that: it is illegal to inquire about an employee’s disability; they must keep medical information confidential: disabled employees are entitled by law to reasonable accommodation. Training is the key to preventing ADA lawsuits.

-- Take all requests for reasonable accommodation seriously. Do not hesitate to seek professional advice on what kind of accommodation will work best for the disabled employee.

-- Closely watch future court decisions. It will be up to the lower courts to establish the definition of who is covered by the ADA.