What does it mean to have a record of disability?

Say, for example, an employee is no longer suffering from cancer but has a long history of it. Can an employer discriminate against that employee based on his record of disability?

In 1990, Congress passed the Americans with Disabilities Act (ADA) which protects employees from being discriminated against because of their disability. This means that an employer cannot discriminate against a qualified individual on the basis of his disability when it comes to hiring, firing, promotion, and pay. So, an employer cannot deny job benefits to a disabled employee or create tests that screen out otherwise qualified but disabled individuals.

The ADA also requires employers to make reasonable accommodations for disabled employees so that they can perform their jobs.

The ADA covers employers with fifteen or more employees, and, like most federal employment statutes, only applies to employees and not independent contractors. An employee is an individual that the employer has the right to control.

If an employee believes that he has been discriminated against on the basis of his disability, he must show that he has a disability as defined by the ADA, that he was otherwise qualified for the position, and that his employer failed to make a reasonable accommodation.

There are three ways an employee can show that he has a disability. First, he may have an actual disability—that is, a physical or mental impairment that substantially limits one or more of his major life activities. Second, he may have a record of an actual disability. Third, he may be regarded as having an actual disability.

To qualify for protection under the ADA, an employee can also show that he has a record of disability. Here, disability means an actual disability—a physical or mental impairment that substantially limits one or more major life activities. So, an employee that has a history of a physical or mental impairment that substantially limits one or more major life activities is protected by the ADA. Thus, an employer cannot discriminate against an employee based on his record of disability. For example, it is unlawful for an employer to look at his employee’s medical history, see his history of disability, and then decide to deny him health benefits given to other non-disabled employees.

Things that constitute a record of disability include hospitalization record, documented time off as a result of the injury, and other medical records.

The disability claimed by the employee through his record must substantially limit a major life activity. Thus, an employee that had a disability that does not substantially limit a major life activity will not be protected by the ADA. An impairment is substantial if it makes a major life activity more difficult, more painful, or more time-consuming to perform than the general population. An impairment may also be substantial if it prevents the disabled person from enjoying that major life activity as long as the general population would.

However, the fact that an employee received treatment for an impair does not alone mean that he has a record of disability—that disability still must substantially limit a major life activity.