What Every Employer Should Know about the Changes to Disability Law

1. What Every Employer Should Know about theChanges to Disability Law Judith Stilz Ogden, JD, LL.M.,MST Clayton State University This presentation is available at http://business.clayton.edu/jogden/

2. Judith Stilz Ogden • Associate Professor of Business Law and Interim Assistant Dean and Director of the MBA Program School of Business Clayton State University • LL.M., Dispute Resolution, Pepperdine University School of Law J.D., Duquesne University School of LawM.S., Taxation, Robert Morris University • judithogden@clayton.edu. • http://business.clayton.edu/jogden//

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5. The ADA Amendments Act of 2008 • On September 25, 2008, President Bush signed into law the ADA Amendments of 2008 (ADAAA). • The Act took effect on January 1, 2009. • Passage of the Act received support from groups for the disabled and employer organizations. • Reverses several years of precedent and portions of EEOC’s existing ADA regulations considered by many members of Congress as too narrowly applying the definition of “disability.”

6. Amendments do not apply retroactively. • No federal appellate court cases yet. • EEOC has Filed Three New Cases under Amended Americans with Disabilities Act • In Atlanta, the agency charged Eckerd Corporation, with refusing to provide a reasonable accommodation. • In a case filed in Baltimore, the agency alleges that surveying company, Fisher, Collins & Carter, fired two employees because they had diabetes and hypertension. • In Lansing, Mich., the agency charged that IPC Print Services fired one of its employees rather than allowing him to work part time while being treated for cancer. 

7. ADA applies to employers with 15 or more employees, including state and local governments. • The Americans with Disabilities Act:A Primer for Small Business http://www.eeoc.gov/facts/adahandbook.html

8. What do the Amendments do? • Clarify the definition of a disability • Broaden the number of individuals covered • Focus new attention on accommodations

9. Proposed Regulations • The act authorizes the EEOC to issue regulations implementing the definition of disability • As part of the required implementation of its provisions, the ADAAA also mandates that the EEOC revise that portion of its existing regulations defining the term “substantially limits” and “major life activities” to comport to the changes enacted by the ADAAA • Proposed regulations: See 29 C.F.R. section 1630 • Questions and answers on the Notice of Proposed Rulingmaking for the ADA Amendments Act of 2008 • http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html

10. Because the ADAAA already is in effect, employers already face the possibility of being called upon to defend their hiring and employment practices under the amended ADAAA definition of disability, even though the EEOC has not issued final guidance.

11. Framework of ADA • In order to be covered by the employment provisions of the Americans with Disabilities Act, both of the following must be true of the employee: • The employee has a DISABILITY because one of the following is true: • S/he has an impairment that SUBSTANTIALLYLIMITS a MAJOR LIFE ACTIVITY, • S/he has a RECORD of having such an impairment, OR • S/he IS REGARDED by the employer as having an impairment, AND The employee is a QUALIFIED INDIVIDUAL because the following are true: • S/he can perform the ESSENTIAL FUNCTIONS of the job either: • With or without REASONABLE ACCOMMODATIONS that do not impose an UNDUE HARDSHIP.

12. Prior Case: Sutton v. United Airlines, Inc (U.S. Supreme Court, 1999) • In determining whether an employee had a “disability,” and would be covered by the Act, employers could consider mitigating or corrective measures to offset the effect of the impairment. • This case involved individuals who were legally blind, but whose vision was 20/20 with glasses.

13. Prior Case: Murphy v. United Parcel Post, (U.S. Supreme Court, 1999) • A truck mechanic had hypertension but he took medication that allowed him to perform normally.

14. Prior Case: Albertsons, Inc. v. Kirkingburg (U.S. Supreme Court, 1999) • A truck driver had uncorrected amblyopia in one eye. This resulted in 20/200 vision in that eye for which his brain subconsciously compensated.

15. The Court held in these three cases that the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual’s impairment. Such measures include artificial aids, medications, devices, and the body’s own systems.The holdings of these cases were later applied to individuals with cancer, epilepsy, diabetes, bipolar disorder, muscular dystrophy, and many other conditions.

16. Prior Case: Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (U.S. Supreme Court, 2002) • Employer argued that an employee with carpel tunnel was not protected by the Act because she did not have a “disability.” • The Supreme Court held that to be disabled, “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s lives.” • Also, the impairment’s impact must be, “permanent or long term.”

17. Definition of a “Disability” under the Amendments • ADAAA emphasizes that the definition of the term “disability” should be interpreted broadly

18. Definition of a “Disability” under the Amendments • Can no longer consider mitigating measures such as taking medication in determining whether an individual has a disability. • An exception still exists, however, for wearing glasses or contacts.

19. Definition of a “Disability” under the Amendments • As always, an impairment must substantially limit a major life activity. • The amendments expand the definition of a major life activity by including two nonexhaustive lists

20. Definition of a “Disability” under the Amendments • The first list includes many activities that the EEOC has recognized: • walking, • caring for ones self, • performing normal activities, • seeing, • hearing, • speaking, • breathing, • learning, • working, and • reproduction

21. Definition of a “Disability” under the Amendments • As well as activities that the EEOC has not specifically recognized • reading, • bending, and • communicating

22. Definition of a “Disability” under the Amendments • The second list includes major bodily functions: • functions of the immune system, • normal cell growth, • digestive, • bowel, • bladder, • neurological, • brain, • respiratory, circulatory, endocrine, and reproductive functions

23. Proposed Regulations Give Examples of Conditions That Would Affect These Functions • Kidney disease affects bladder function; • Cancer affects normal cell growth; • Diabetes affects functions of the endocrine system (e.g., production of insulin); • Epilepsy affects neurological functions or functions of the brain; • Human Immunodeficiency Virus (HIV) and AIDS affect functions of the immune system and reproductive functions; • Sickle cell disease affects functions of the hemic system; • Lymph edema affects lymphatic functions, and • Rheumatoid arthritis affects musculoskeletal functions.

24. Proposed regulations also create a per se list of physical and medical impairment that consistently qualify as disabilities • Original ADA rejected the idea of having such a list

25. Proposed Regulations Impairments that will consistently meet the definition of a disability • Autism • Cancer • Cerebral palsy • Diabetes • Epilepsy • HIV or AIDS • Multiple Sclerosis or muscular dystrophy • Major depression, bipolar disorder, post-traumatic stress disorder, OCD, or schizophrenia which substantially limit certain major life activates.

26. Proposed Regulations: Examples of impairments that may be disabling for some but not others • Asthma • High blood pressure • Learning disability who is substantially limited in reading learning, thinking or concentrating • Back or leg impairments • Psychiatric impairment • Carpal tunnel syndrome • Hyperthyroidism

27. Definition of a “Disability” under the Amendments • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

28. Proposed regulations discuss disabilities that are episodic or in remission such as epilepsy, cancer and psychiatric impairments.

29. Proposed regulations clarify what it means for an impairment to substantially limit • An impairment is a disability within the meaning of this section if it ``substantially limits'' the ability of an individual to perform a major life activity as compared to most people in the general population • An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.

30. Regulations broaden analysis of substantially limited major life activity of working. • They state this should include coverage of individuals to the maximum extent permitted by the terms of the ADA and should not require extensive analysis.

31. An individual whose impairment substantially limits a major life activity need not also demonstrate a limitation in the ability to perform activities of central importance to daily life in order to be considered an individual with a disability. • Example from the Proposed Regulations: Someone with a 20-pound lifting restriction that is not of short-term duration is substantially limited in lifting, and need not also show that he is unable to perform activities of daily living that require lifting in order to be considered substantially limited in lifting.

32. The third prong: An individual is protected if he or she is “regarded as” having an impairment. • Amendments do not require that the impairment limits or is perceived to limit a major life activity. • Congress stated that it wanted to reinstated the reasoning of the Supreme Court in School Board of Nassau County v. Arline, • “society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.”

33. An individual is protected if he or she is “regarded as” having an impairment. • The individual is regarded as unless the impairment is transitory or minor • If the individual is merely regarded as, he or she is not entitled to a reasonable accommodation

34. Examples of Impairments That Are Transitory and Minor from the Proposed Regulations • Example 1: An individual who is not hired for a data entry position because he will be unable to type for three weeks due to a sprained wrist is not regarded as disabled, because a sprained wrist is transitory and minor. • Example 2: An individual who is placed on involuntary leave because of a broken leg that is expected to heal normally is not regarded as disabled, because the broken leg is transitory and minor.

35. WHAT DO THESE CHANGES MEAN? • Some of the cases that were dismissed in the past, will not be dismissed in the future. • Probably will be more claims and more litigation. (In 2009, 21,451 charges were filed with the EEOC.) • Focus will be on other aspects of the ADA, such as what is a reasonable accommodation or an undue hardship?

36. WHAT SHOULD EMPLOYERS DO? • Review job description and essential functions • Handbooks and policies may need to be updated. • Managers, supervisors and HR personnel need to be retrained. • With a likely increase in the number of requests for reasonable accommodations, employers should remember to utilize the ADA’s interactive process. (And keep records.)

37. Reasonable accommodations: interactive process • 4 steps: • 1.The employer analyzes the job to determine its purpose and essential functions. • 2. The employer and employee work together to identify what barriers exist to the employee’s performance of a particular job function. • 3. The employer, working with the employee, should identify a range of possible accommodations. • 4. The employer should assess the effectiveness of each accommodation and the preference of the employee, and then determine if any of the accommodations would impose an undue hardship

38. RESOURCES • For a copy of the ADAAA, please visit http://www.govtrack.us/congress/bill.xpd?bill=s110-3406 • The EEOC provides a summary of the ADAAA and guidance at http://www.eeoc.gov/ada/amendments_notice.html.

39. Regulations Related to Disability Discrimination • http://www.eeoc.gov/laws/types/disability_regulations.cfm