Michigan Supreme Court Rules That Mitigating Measures Should Be Considered In Determining Disability Status

The Michigan Supreme Court has resolved the issue of whether an individual's medication or other mitigating measures are to be considered in determining an employee's disability status. In Chmielewski v Xermac, Inc, a sales employee who had undergone a liver transplant and, as a result, was dependent on costly anti-rejection medication claimed that he was fired in violation of the Michigan Handicappers' Civil Rights Act1 so that his employer could avoid increased health care costs. The employer argued, among other things, that the employee was not disabled.

On the issue of the employee's disability status, the employee argued that he was disabled because, without his anti-rejection medication, he would die. The employer countered that the employee's condition was controlled by medication and that the determination of his disability status (i.e., whether the employee was limited in a major life activity) should be judged on the basis of his condition on the medication. The court agreed with the employer.

In reaching its decision, the court reviewed the EEOC's Guidelines on disability status under the Americans with Disabilities Act which state that disability is to be determined without regard to mitigating measures. However, the court found the reasoning of several federal courts that have rejected the EEOC's position more persuasive. The plain language of both the ADA and MHCRA require a person to have a substantially limiting medical condition. According to the court, the EEOC's position would expand the scope of disabled persons to include an individual "who would have a substantial limitation if he failed to take his medication or discontinued using other mitigating measures."

The court observed that in some cases an individual might be limited despite mitigating measures, e.g., if he can show that the use of the mitigating measure is time-consuming or substantially burdensome. In this case, because the employee on medication was not substantially limited, he was not considered disabled.

1 Effective March 12, 1998, the Michigan Handicappers' Civil Rights Act was changed to the "Persons with Disabilities Civil Rights Act." All references to "handicap" and "handicappers" have been changed to "disability" and "persons with a disability." 1998 PA 20.