ADAAA: What does it mean for employers?

1. ADAAA: What does it mean for employers? Cherie Blackburn Molly Hughes Cherry July 20, 2011

2. Prohibits discrimination in employment against a “qualified individual with a disability” Applies to private employers with 15+ employees (FT or PT), as well as all state and local government employers ADA Title I

3. Who Is an “Individual With a Disability”? • An individual who: • Has a physical or mental impairment that substantially limits one or more majorlife activities of such individual • Has a record of such an impairment • Is regarded as having such impairment

4. Who Is a “Qualified Individual With a Disability”? • An individual with a disability who: • Is qualified for a job • With or without reasonable accommodation • Can perform the essential functions of the job

5. What’s New? ADAAA Timeline • ADAAA • Signed into law Sept. 25, 2008 • Went into effect Jan. 1, 2009 • Expands several important definitions • ADAAA Regulations • Final rules published Mar. 25, 2011 • Following review of over 600 public comments on proposed regulations issued in Sept. 2009 • Accompanied by appendix with interpretive guidance as well as Fact Sheet and Q&A • Went into effect May 24, 2011

6. Why Was the ADAAA Enacted? • To overrule Supreme Court decisions • Mitigating factors taken into account in deciding whether MLA is “substantially limited” • “Disability” construed narrowly to create a “demanding standard” • … and “reinstat[e] a broad scope of protection to be available under the ADA.”

7. Broad interpretation of “disability” Expansive definition of “major life activity” Limited role of mitigating factors Lower standard for “regarded as” disabled What Does the ADAAA Change?

8. EEOC Final ADAAA Regulations

9. ADA as Amended by ADAAA • Prohibits discrimination against a “qualified individual on the basis of disability” • That is, an individual who: • Has a physical or mental impairment that substantially limits a major life activity, or • Has a record of such an impairment, or • Is regarded as having such impairment, and • Is qualified for a job and can perform its essential functions with or without reasonable accommodation

10. Main ADAAA Changes • “Disability” “shall be construed in favor of broad coverage” • “Substantially limits” does not mean “severely” or “significantly” restricted • “[W]hether an individual’s impairment is a disability under the ADA should not demand extensive analysis”—focus should instead be on issues of discriminatory conduct and reasonable accommodation • “Major life activities” includes “major bodily functions”

11. Main ADAAA Changes • Positive effects of mitigating measures other than ordinary eyeglasses or contact lenses are not considered in deciding if impairment SL a MLA • Impairment that is episodic or in remission is disability if it would SL a MLA when active • Applicant or employee can be “regarded as” disabled • Even if employer did not perceive him/her as SL in a MLA • If subjected to discrimination because of perceived impairment that is not “transitory and minor” • Individual who is “regarded as” disabled is not entitled to RA

12. ADAAA Did Not Change … • Definitions of/burdens of proof relating to: • “Qualified” • “Reasonable accommodation” • “Undue hardship” • “Direct threat”

13. Practical Effect • Since 2009, disability discrimination charges have: • Increased • Decreased • Stayed the same • Don’t know

14. Final Regulations • “Major” is not supposed to impose a “demanding standard” • Non-exhaustive list of what constitutes a MLA (in addition to those listed in ADAAA): • Sitting • Reaching • Interacting with others

15. Final Regulations • “The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, ….” • “Substantially limits” is not meant to be a “demanding standard”

16. Impairments that “it should easily be concluded” will SL on a MLA: Deafness Blindness Intellectual disability Partially or completely missing limbs Mobility impairments requiring use of a wheelchair Autism Cancer Cerebral palsy Diabetes Epilepsy HIV infection Multiple sclerosis Muscular dystrophy Mental disabilities (major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, schizophrenia) Final Regulations: “[T]he number of individuals [in the U.S.] with the[se] impairments … could be at least 60 million” Final Regulations

17. Limited Role of Mitigating Factors • Pre-ADAAA: whether MLA is “substantially limited” depends on effects of “mitigating measures” • Post-ADAAA: Most mitigating measures should not be considered when determining if someone is disabled • Exceptions:

18. Examples of Mitigating Measures • Medication for conditions like epilepsy or depression • Insulin to control diabetes • Prosthetic devices • Walkers, canes, and crutches • Hearing aids

19. Final Regulations • Non-exhaustive list of mitigating measures that must be disregarded: • Medication • Medical supplies, equipment, or appliances • Low-vision devices (devices that magnify, enhance, or otherwise augment a visual image, not including ordinary eyeglasses or contacts) • Prosthetics including limbs and devices • Hearing aids and cochlear implants or other implantable hearing devices • Mobility devices • Oxygen therapy equipment and supplies • Reasonable accommodations • Assistive technologies • Learned behavioral or adaptive neurological modifications • Psychotherapy, behavioral therapy, or physical therapy

20. Not Impairments From Appendix—“Interpretive Guidance:” • Physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘‘normal’’ range and are not the result of a disorder • Predisposition to illness or disease • Pregnancy • But certain resulting impairments (e.g., gestational diabetes) may be considered a disability if they SL a MLA • Also a pregnancy-related impairment may constitute a ‘‘record of’’ such an impairment or may be covered under the ‘‘regarded as’’ prong if the basis for a prohibited employment action and not ‘‘transitory and minor’’

21. Not Impairments • Common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder • Environmental, cultural, or economic disadvantages such as poverty, lack of education, or a prison record are not impairments • Advanced age is not an impairment • But various medical conditions commonly associated with age, such as hearing loss, osteoporosis, or arthritis, would constitute impairments

22. Lower Standard For “Regarded As” Disabled • Broadened definition • Because of perceived mental or physical impairments • Regardless of whether perceived to limit major life activity • Excludes “transitory and minor” impairments • Transitory = 6 months or less (actual or expected)

23. Final Regulations • “Regarded as” claimants don’t have to show impairment that SL a MLA—only “actual disability” and “record of” claimants seeking RA have to show such an impairment • Even if individual is “regarded as” having impairment, liability is established only when he/she proves discriminated against on basis of disability

24. Tips for Employers • Most individuals requesting RA likely disabled • Focus more on functional job limitations and whether RA would work • Train supervisors/managers who are likely to receive/evaluate RA requests • Update job descriptions, policies, and forms • Reconsider inflexible no-fault/fixed leave attendance policies • More ADA lawsuits will survive summary judgment

25. Tips for Employers • A: Assume • D: Disability • A: And • A: Attempt to • A: Accommodate

26. What does an employer do when . . . • A severely obese employee requests a dedicated parking space at the front of the building to minimize the area he must walk on the way to work?

27. What does an employer do when . . . • A pregnant employee repeatedly misses work because of morning sickness?

28. What does an employer do when . . . • A relatively new employee lets loose a string of curse words at her supervisor?

29. What does an employer do when . . . • An employee who does not qualify for FMLA submits a medical certification and requests FMLA leave?

30. What does an employer do when . . . • An employee on approved FMLA leave is not released to return to work by her physician at the end of twelve weeks?

31. What does an employer do when . . . • Two employees are competing for a promotion to a stressful supervisory position, one of whom recently suffered a heart attack?

32. Questions? Cherie Blackburn Molly Hughes Cherry Phone: 800-825-6757 or 843-577-9440 E-mail: cblackburn@nexsenpruet.com mcherry@nexsenpruet.com