ADA & The New Disabilities

1. ADA & The New Disabilities Deborah K. St. Lawrence Thompson, Esquire September 20, 2012

2. OVERVIEW OF • Americans with Disabilities Act (ADA) AND • Americans with Disabilities Act Amendments Act (ADAAA)

3. Americans With Disabilities Act of 1990 (ADA) • Prohibits discrimination against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

4. Americans With Disabilities Act of 1990 (ADA) • An individual with disability is a person who: • Has a physical or mental impairment that substantially limits one or more major life activities; • Has a record of such an impairment; or • Is regarded as having such an impairment.

5. Americans With Disabilities Act of 1990 (ADA) • A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question.

6. Americans With Disabilities Act Amendments Act of 2008 (ADAAA) • Broadens the definition of “disability” • Term “substantially limits” - • requires a lower degree of functional limitation than the standard previously applied by the courts; • must be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA; • requires an individualized assessment.

7. Americans With Disabilities Act Amendments Act of 2008 (ADAAA) • “Impairment” may be physical or mental - • Physical impairments include: physiological disorders or conditions, cosmetic disfigurement, anatomical loss (neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, lymphatic, skin, endocrine) • Mental impairments include: emotional or mental illness (including but not limited to major depression, bipolar disorder, anxiety disorders, schizophrenia, personality disorders).

8. OBESITY

9. Obesity • The EEOC’s position has always been that morbid obesity (defined as having a body weight more than 100% over the norm) and obesity caused by a physiological disorder are “disabilities” under the ADA. • In the past, courts have been split on whether the ADA covers morbid, or severe, obesity by itself, or if the obesity must be the result of some underlying physiological disorder (i.e., hypertension, diabetes, thyroid disorder).

10. Obesity • The Fourth Circuit Court of Appeals has held that obesity alone, without an underlying physiological condition that caused the obesity, is not a disability within the meaning of the ADA. Hill v. Verizon Maryland, Inc. (D. Md. July 13, 2009). • Plaintiff’s weight exceeded Verizon’s maximum weight limit for performing aerial work. Verizon removed Plaintiff from the field, and assigned him office clerical work.

11. Obesity • A federal court recently found severe obesity, regardless of the cause, to be a disability under the ADA. E.E.O.C. v. Resources for Human Development, Inc., 2011 WL 6091560 (E.D. La. Dec. 07, 2011). • Plaintiff weighed about 400 pounds when she was hired. The employer terminated the plaintiff when it found that her weight severely impaired her job performance. At the time of her termination, she weighed 527 pounds. • Death Certificate listed cause of death as ‘morbid obesity’ with significant contributing causes: hypertension, diabetes, congestive heart failure • Case settled for $125,000

12. Bottom Line • In the United States, approximately 34% of adults are obese. • Employers should recognize obesity as a potential disability that may require reasonable accommodation through the “interactive process” called for by the ADA.

13. EPISODIC IMPAIRMENTS

14. Episodic Impairments • Under the ADAAA, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; • The fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is not relevant.

15. Epilepsy • The Fourth Circuit Court of Appeals recently held that epileptic seizures lasting a couple of minutes are mild enough that they do not impose any restrictions on activities that are greater than those of the “average person in the general population” performing the same activities, thus is not a disability under the ADA. Carrier v. VCA Animal Hosp., Inc. (D. Md. Aug. 13. 2012). • Plaintiff’s experienced compressed partial seizures, which lasted 30 seconds to 2 minutes, and were controlled by medication. Plaintiff was terminated for performance related reasons.

16. Epilepsy • Plaintiff’s state law claims survived because Article 49B of the Maryland Code explicitly includes epilepsy in its definition of disability.

17. Migraine • Tenth Circuit Court of Appeals recently held that an employee who suffered from migraine only while working for a particular physician was not disabled under the ADA. Allen v. SouthCrest Hosp., (10th Cir., Dec. 21, 2011). • Court acknowledged that migraines, when active and treated with medication, did not permit plaintiff to perform activities to care for herself and compelled her to go to sleep. However, to be disabled in major life activity of ‘working’, plaintiff must be significantly restricted in ability to perform either a class of jobs or a broad range of jobs in various classes as compared to average person of similar skill and training. Plaintiff’s condition only affected her work for one physician.

18. INABILITY TO WORK OVERTIME

19. Employee’s Inability to Work Overtime is Not a Per Se Disability • In February 2012, the Fourth Circuit Court of Appeals concluded that the inability to work overtime is not, in and of itself, a disability under the original version of the ADA. Boitnott v. Corning Inc., (4th Cir., Feb. 10, 2012). • Plaintiff was a maintenance engineer who was diagnosed with a mild form of leukemia that did not require medical treatment. However, his doctor limited him to eight hours of work per day due to fatigue related to the condition. Corning responded that the job required the ability to work overtime, and removed him from his position.

20. Boitnott v. Corning, Inc. – Employee’s Inability to Work Overtime is Not a Per Se Disability • Plaintiff contended that his leukemia substantially interfered with the major life activity of working, in that it prevented him from working overtime. • The Fourth Circuit disagreed, holding that an inability to work overtime does not constitute a disability. An employee is not “substantially limited” if he or she can work a 40-hour workweek, but is unable to work overtime hours. • Numerous federal appellate courts previously have addressed the question of whether the inability to work overtime is a substantial limitation on the major life activity of working. The Fourth Circuit’s recent opinion comports with the law in the First, Third, Fifth, Sixth, and Eighth Circuits.

21. The Decision’s Implications • The Fourth Circuit was careful to make an individualized inquiry into the facts. Employers should not assume that the inability to work overtime can never support a successful ADA claim. • This case was decided before the ADAAA. Under ADAAA, it is likely that the leukemia itself, even in the absence of significant symptoms, would qualify as an ADA disability. • In addition, the ADAAA broadens the definition of restrictions that limit persons in their ability to work. The inability to work overtime may qualify as a restriction that would classify restricted employees as disabled under the ADA.

22. The Decision’s Implications Cont’d • Post-ADAAA litigation in this area will shift from the threshold issue of disabled status to the reasonable accommodation question. Is the ability to work overtime an essential job function? If so, what steps can the employer take to allow an employee with hours restrictions to work some overtime? Can work schedules be changed to accommodate the employee's medical restrictions? Can the disabled employee trade schedules with other employees to allow him to work within his medical restrictions?

23. INCREASED PUSH TO BRING DISABLED VETERANS BACK TO WORK

24. EEOC Guidance Regarding Disabled Veterans (x2) • In February 2012, the EEOC released a guide for employers regarding veterans and the ADA, and a separate guide for wounded veterans on understanding their ADA rights. • The EEOC noted that approximately 25% of recent veterans have a service-connected disability, compared to about 13% of all veterans, according to 2011 U.S. Bureau of Labor statistics. • The guide also states that some service-connected disabilities, such as deafness, blindness, missing limbs, mobility impairments, major depressive disorder and post-traumatic stress disorder will easily be concluded to be disabilities under the ADA.

25. Reasonable Accommodations • Written materials in accessible formats, such as large print, Braille and on computer disk. • Alternative hiring and recruitment practices - recruitment fairs, interviews, tests and training in accessible locations. • Modified equipment and devices, such as assistive technology, a glare guard for a computer monitor used by someone with a traumatic brain injury and a one-handed keyboard for a person missing an arm or hand.

26. Reasonable Accommodations • Physical modifications to the workplace, including adjusting the height of a desk or shelves for someone in a wheelchair. • Leave for treatment, recuperation and training related to their disability. • Reassignment to a vacant position when a disability prevents performance of the employee’s current job or where accommodating the employee in the current job would result in undue hardship.

27. Reasonable Accommodations • Make existing facilities used by employees readily accessible to and usable by persons with disabilities; • Job restructuring, modifying work schedules, reassignment to a vacant position; • Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

28. EEOC’S CHALLENGE TO INFLEXIBLE LEAVE/NO-FAULT ATTENDANCE POLICIES

29. Employer Policies are the Subjectof Increased Enforcement Activity • Over the past few years, the EEOC has aggressively targeted inflexible leave of absence policies and no-fault attendance policies. • There have been a number of multi-million dollar settlements against employers in 2011 alone. In July 2011, Verizon agreed to pay $20 million to employees who were fired or disciplined under the company’s No-Fault Attendance policy, the largest EEOC disability discrimination settlement in history.

30. What are Inflexible Leave of Absence Policies and No-Fault Attendance Policies? • Inflexible leave of absence policies provide for the automatic termination of employees who cannot return to work after exhausting a fixed period of leave. • No-fault attendance policies charge an absence against an employee regardless of the reason for the absence. Thus, problems arise when the employer fails to recognize – and exclude from the policy – absences that relate to a disability or that fall under the FMLA.

31. Medical Leave for Prolonged or Indefinite Periods are Generally Not Reasonable • Employer does not need to give bus driver with diabetes, hypertension, and a chronic heart condition indefinite leave to try to recover. Employee had received only 10 days of leave, but his condition indisputably made him unable to perform the job. The ADA does not require an employer to provide an accommodation in the hope that sometime in the future the disabled individual will become qualified for the position in question. Myers v. Hose, 50 F. 3d 278 (4th Cir. 1995).

32. Indefinite Reprieve of Essential Functions of Job Are Generally Not Reasonable • Supervisor of felony offenders whose FMLA leave expired, and whose doctor’s note did not have a reasonable estimate of when she would be able to resume all essential functions of her positions is properly subject to termination. Robert v. Bd. Of Commrs. Of Brown County, (D. Kan. May 14, 2009). • Court concluded that plaintiff was asking for an open-ended, indefinite leave of absence.

33. Medical Absences for Definite Periods May Be Reasonable Accommodations… • …Especially if the Length of the Leave Falls Within the Employer’s Leave Policies. • Where a disabled employee requests medical leave for a short and determinable period, the ADA requires the employer to allow such leave as reasonable accommodation, especially if the length of the leave falls within the maximum amount of time granted by the employer's leave plan. • Sales representative with depression and anxiety was unfairly denied additional time off after he took one month’s leave. The court noted that the employee’s leave request was for less time than the employer's medical leave plan provided to nondisabled employees (which was 1 year). Criado v. I.B.M. Corp., 145 F.3d 437 (1st Cir. 1998).

34. Medical Absences for Definite Periods May Be Reasonable Accommodations… • …Especially if the Length of the Leave Falls Within the Employer’s Leave Policies. • Similarly, a network technician with PTSD was entitled to a four-to-five-month medical leave for an inpatient treatment program that his treating psychiatrist had recommended, even though he had already gotten 5 weeks of leave. Rascon v. US W. Commc'ns, Inc., 143 F.3d 1324 (10th Cir. 1998).

35. Compliance Strategies • Review written job descriptions for each position to ensure that you and the employee are clear on expectations (accurate, robust job descriptions are a must!) • Consider the consequences of not requiring the employee to perform all job functions in the written job description. • Review policies and practice to ensure that they communicate a willingness to consider excusing absences under the ADA and other similar laws (100% healed/without restrictions policies are dangerous!) • Train your employees to understand and recognize situations that may implicate the ADA and FMLA, to refer leave of absences request to Human Resources for proper handling, and to understand the company’s legal obligations.

36. Compliance Strategies • Ensure that attendance programs and policies are applied uniformly. • Confirm that ADA-protected absences are not counted against employees in performance reviews. • Engage in the interactive process – and document it. • Don’t forget about ADA employees on leave; develop documentation to show that you considered return-to-work options along the way. • Don’t be afraid to follow up with the employee when leave is unpredictable, chronic or more frequent than expected.

37. 5 Easy Steps to Losing An ADA Case • Make a snap judgment that a disabled employee’s request for additional is unreasonable; • Don’t even consider additional leave as a possible accommodation; • Don’t engage in any interactive dialogue with the disabled employee; • Don’t request any additional medical information; • When you fire the disabled employee be sure to state in the termination letter “Due to your long term disability we must terminate your employment.”

38. 5 Tips to Winning An ADA Case • Listen carefully to determine if a disabled employee is requesting a reasonable accommodation and engage in an Interactive Dialogue to determine what can be done to accommodate the disability; • Make an individualized assessment of each request (the employee may not get precisely what he requests ; what is reasonable for one employer may not be reasonable for another); • Be clear on the essential functions of the disabled employee’s job; • Obtain all medical information to which you are legally entitled so that you can make the most informed decision about: (i) the employee’s ability to return to work, and (ii) whether an accommodation may help the employee perform the job; • Keep communicating with your employee.