One of the most unexpected consequences of the spread of computers in the white collar work place has been the enormous rise in a form of repetitive stress syndrome known as Carpal Tunnel Syndrome. CTS, as it is called, can give rise to several types of legal claims. First, thousands of product liability cases have been filed against keyboard manufacturers. Second, affected employees can recover damages under state workman’s compensation laws. Third, and the focus of this article, employees can claim that they were denied employment, discriminated against by their employer, or wrongfully terminated because they have CTS. Two laws that are directly applicable to such claims are the federal Americans With Disabilities Act (the “ADA”) and the Massachusetts antidiscrimination law.
What Duties do Employers Have to Employees Suffering From CTS? Both the federal and state laws prohibit discrimination based on a “disability.” The concept of a disability is broadly defined to include physical or mental impairment that “substantially limits a major life activity.” Depending on the circumstances, CTS may be considered a disability under both federal and state laws.
Which Employees are Protected? The law answers this question by creating a complex definition for “qualified disabled persons.” An employee is a “qualified disabled person” if he or she can perform the essential functions of his or her job with or without a reasonable accommodation. If the essential function of an employee is, for example, data entry at a rate of speed that can only be accomplished by the use of a keyboard, an employee who cannot perform keyboard functions due to CTS is not a qualified disabled person.
Can an Employer Terminate a Disabled Employee? Only if the employer cannot “reasonably accommodate” the employee or the available accommodation would cause the employer an undue hardship. For example, in the case of an employee with CTS the employer may be required to modify the employee’s work schedule, grant a temporary leave of absence or purchase or modify equipment that will reduce the impact of the injury on the employee’s ability to perform. An employer need not grant even these accommodations if to do so would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the employer’s business.
Can an Employer Ask a Prospective Employee if He or She Suffers from CTS?The ADA makes it illegal to make “disability-related inquiries” until after a tentative job offer is made. Thus, it would be illegal to ask an applicant “do you have CTS?” or “have you ever been treated for CTS?” However, the law does permit employers to ask applicants questions such as whether they are capable of performing the job with or without reasonable accommodation or whether the applicant expects to be able to meet the attendance requirements of the job.
TLB Comment : The Occupational Safety and Health Administration is developing workplace regulations intended to prevent or minimize repetitive stress injury. These regulations are expected to address computer terminal keyboards, and may mandate changes in the way that computer workstations are set up and used. OSHA currently is analyzing a survey of 9,000 U.S. companies, and regulations are unlikely to become law before 1996. In the meantime, employers should be particularly aware of the requirements of the ADA and related laws in order to avoid significant liability for wrongful termination or other failures to comply with antidiscrimination laws.