An employee may be entitled to the protections of the Americans with Disabilities Act if he is “regarded as” disabled by his employer.  An employer regards an employee as disabled when it mistakenly believes that the employee’s impairment substantially limits his ability to work.  The “regarded as” provision of the ADA was meant to combat erroneous views related to impaired individuals, and to keep employers from basing employment-related decisions on myths or stereotypes.

Recently, the 8th U.S. Circuit Court of Appeals upheld judgment in favor of an employer who terminated an individual’s employment after the employee refused to enter an in-patient alcohol treatment program recommended by a psychologist.  Although the employee claimed that the termination was based upon a “perceived” disability in violation of the ADA, the Eighth Circuit found that because the mandatory inpatient treatment was based upon the recommendation of a qualified medical provider and not upon myths or stereotypes about the disabled, it did not establish a perception of disability and, therefore, was not a violation of the ADA.  Kozisek v. County of Seward, Nebraska, 8th Cir., No. 07-3682, Aug.,27, 2008.

In 1994, after 13 years of employment with Seward County, Nebraska as a weed control officer, Fredrick Kozisek applied for and obtained the position of County Veterans Service Officer (CVSO), which included work related to veterans’ issues.  However, the job was considered to be a “multi-position” that also included Building and Grounds supervisor and General Assistance Administrator.  During his tenure as CVSO, Kozisek and the County disagreed on the nature of the job, with Kozisek arguing to devote more time to veterans’ issues, and less to the other two portions of the position.  Kozisek himself is a Vietnam veteran, and suffers from Post Traumatic Stress Disorder, for which he regularly took medication.  Kozisek did not inform his employer of his PTSD.

One evening in July 2005, having failed to take his prescribed medication for a number of days, Kozisek left work early and began drinking.  Under the influence of alcohol he then shot a number of his family’s farm animals, including the family dog, and subsequently threatened his wife.  He was arrested the next morning by the County Sheriff.  Based on the incidents, the County and Kozisek agreed that Kozisek would get a psychological/substance abuse evaluation.  After a meeting with Kozisek, a mental health practitioner from the Veterans Administration recommended that Kozisek complete inpatient alcohol treatment.  Kozisek did not want to undergo inpatient treatment, and informed the County that he would prefer outpatient counseling and AA meetings.  The County then informed Kozisek that he had 10 days to enroll in an inpatient treatment or lose his job.  Kozisek refused, and his employment ultimately was terminated.

Kozisek then filed a lawsuit claiming, in part, that he was fired because the County regarded him as disabled by alcoholism, as evidenced by its requirement that he complete inpatient treatment as a condition of his continuing employment.  The lower court granted summary judgment in favor of the County.  That decision was upheld on appeal by the Eighth Circuit, which found that the County’s decision was “not based upon misconceptions, myths or stereotypes” related to Kozisek’s drinking problem.  Rather, it was based upon a licensed mental health therapist’s recommendation of inpatient treatment.  According to the Court, the County’s insistence that Kozisek fulfill that recommendation does not violate the ADA’s prohibitions on regarding employees as disabled.

The “regarded as” provision of the ADA was meant to combat “archaic attitudes, erroneous perceptions, and myths” working to the disadvantage of the disabled or perceived disabled.  According to the Court, then, “[i]f a restriction is based upon the recommendations of physicians, then it is not based upon myths or stereotypes about the disabled and does not establish a perception of disability.”  The County’s success in this case was based on the fact that it obtained an opinion from a mental health professional after an incident that involved a violation of law by Kozisek, and then acted upon that recommendation, without making independent judgments related to Kozisek’s impairment or to that impairment’s effect on his ability to function in any particular major life activity.  


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