The ADA Amendments Act: What Changed, and What Does It Mean to You? Spectrum Health Occupational Services Employer Advi

1. The ADA Amendments Act: What Changed, and What Does It Mean to You? Spectrum Health Occupational Services Employer Advisory Council April 26, 2011 William H. Fallon Labor and Employment Attorney www.millerjohnson.com

2. The information presented and the written materials have been prepared for informational purposes only and are not legal advice. They are not intended to create and do not constitute a lawyer-client relationship. Before acting on the basis of any information or material, readers who have specific questions or problems should consult their lawyer.

3. ADA Refresher • ADA Created Four Obligations for Employers: 1. Make reasonable accommodations for an individual’s disability, if necessary for the individual to perform the essential functions of the job – unless the accommodation would impose an “undue hardship.” ADAAA means: Expect this to happen much more often.

4. ADA Refresher • Do not discriminate because of a disability (or because the employer regards the person as having a disability). ADAAA means: The pool of potential plaintiffs is now enormous.

5. ADA Refresher • Limit medical examinations and inquiries of applicants and employees. • Applicants: Post-offer only • Employees: Job-related and consistent with business necessity • Keep medical information strictly confidential. ADAAA means: The rules are the same, but many more people will be affected.

6. ADA Refresher • Who is Protected by ADA? -- An individual who • has a physical or mental impairment that substantially limits a major life activity, • has a record or history of such an impairment, or • is regarded as having a disability

7. ADA Refresher • To Be Protected by ADA, the Individual Must Be “Qualified”: • Qualified = Able to perform the essential functions of the job, with or without reasonable accommodation

8. Refresher: EssentialJob Functions • What determines whether a function is “essential” or “marginal”? • The employer’s judgment • The written job description • The amount of time spent performing the function • The consequences of not requiring someone in the job to perform the function • Terms of a collective bargaining agreement • The actual experiences of this individual and others in your workplace

9. The ADAAA - 2008 • What Did the ADA Amendments Change? • Actual Disability: • Expanded the category of “major life activities” • Relaxed the standard for a “substantial” limitation • Removed mitigating measures as a factor in whether someone has an ADA disability • Instructs that the term “disability” shall be construed in favor of broad coverage • Created a broad definition of “regarded as” disabilities – for discrimination claims only

10. What Is A “Disability”? • A physical or mental impairment . . . • that substantially limits . . . • one or more major life activities • EEOC says: After ADAAA, the determination of “disability” should not demand an extensive analysis. • Must always be determined on an individualized basis. So generalizations are dangerous.

11. What Is A “Disability”? • Physical or Mental Impairment • Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, or • Any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

12. What Is A “Disability”? • Substantially Limits • The impairment need not prevent, or significantly or severely restrict, the individual’s performance of the major life activity. • The analysis is in comparison with most people in the general population. • The term is construed broadly in favor of expansive coverage.

13. What Is A “Disability”? • Major Life Activities: Very broad -- • Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; and • The operation of any major bodily function (immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, musculoskeletal, and reproductive functions)

14. What Is A “Disability”? • Does Duration Matter? • EEOC: There is no specific durational requirement. • An impairment that lasts less than 6 months can be a disability. • “Impairments that last only for a short period of time are typically not covered, although they may be covered if they are sufficiently severe.” • Example: An individual with back impairment that results in a 20-pound lifting restriction that last for several months is disabled. • Impairments that are episodic are disabilities if they substantially limit a major life activity when active.

15. What Is A “Disability”? • The Bottom Line: • A disability is a physical or mental condition that • makes it more difficult for the individual to do something important, or • impacts one of their major bodily functions in comparison to the general population.

16. What Is A “Disability”? • The Bottom Line, Part 2: • Unless you are prepared to undertake • an extensive factual, medical and legal analysis to determine whether a condition is a disability, and • significant legal risk, then • assume that the impairment is a disability – for accommodation and discrimination issues.

17. Epilepsy Cancer Diabetes HIV Arthritis Migraines Multiple sclerosis Blindness Deafness Cerebral palsy Autism Muscular dystrophy Major depression Schizophrenia Obsessive/compulsive disorder Bi-polar disorder Asthma/COPD Heart disease Fibromyalgia Chronic fatigue disorder Attention deficit disorder/ADHD Narcolepsy Irritable bowel syndrome Severe allergies And more Sure Bets

18. What is Not a Disability? • Vision corrected by ordinary eyeglasses or contact lenses • Pregnancy (without additional impairments) • Eye color • Hair color • Left-handedness • Height • Weight – but … • Muscle tone within normal range • Poor judgment • Laziness • Quick temper – but …

19. Close Calls? • Eczema • Carpal tunnel syndrome • Back pain • Stress • Post-partum depression • Broken bones • Torn muscle, ligament, cartilage • Others?

20. What Is a Record of a Disability? • “Record of a Disability” • The individual -- • has a history of having a “disability,” or • has been misclassified as having a “disability.” • Because “disability” is broader, the “record of” category is also broader.

21. The Interactive Process of Reasonable Accommodation • Reasonable Accommodation: The Interactive Process • Because “disability” is now much broader, the “interactive process” of reasonable accommodation is likely to be more common and more critical. • The interactive process starts when an employee “requests” an accommodation.

22. The Interactive Process of Reasonable Accommodation • Initiating the Interactive Process • The individual must initiate the process, by requesting an accommodation. • To request accommodation, the individual or a representative must let the employer know that the individual needs an adjustment or change at work for a reason related to a medical condition. • The individual may use “plain English” and need not mention the ADA or use the phrase “reasonable accommodation.”

23. The Interactive Process of Reasonable Accommodation • Advice for Employers: • By policy, encourage accommodation needs to be reported, and reported promptly. • Specify how and to whom accommodation requests are made. • Train managers • To recognize requests for accommodation • To refer requests to the right people • Not to make assumptions about impairments • Not to make medical inquiries • To deal with performance and behavior

24. The Interactive Process of Reasonable Accommodation • Examples: • An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of my medical treatments." This is a request for reasonable accommodation. • An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." This is a request for reasonable accommodation. • A new employee tells her supervisor that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation.

25. The Interactive Process of Reasonable Accommodation • Steps in the Interactive Process: • Dialogue with the employee • Identify the essential non-essential job functions • Identify work restrictions, or other limitations on the ability to perform essential job functions • Determine whether medical information is required • From employee’s doctor • From another doctor

26. The Interactive Process of Reasonable Accommodation • Steps in the Interactive Process, cont.: • Establish objective grounds for any requests for medical information. • Explore all accommodation options that will enable the employee to perform essential functions. • Explore all accommodations suggested by employee or employee’s doctor. • Consider other options identified by supervisor, HR, disability manager. • Select an accommodation. • Does not have to be employee’s preferred accommodation. • Get buy-in from employee, employee’s doctor.

27. The Interactive Process of Reasonable Accommodation • Document the Process • All communications with the employee and the employee’s doctor • The employee’s requested accommodation and the reasons for it • Other accommodations that were considered • Pros and cons of all options • Which accommodation was chosen and why • Employee’s reaction

28. Reasonable Accommodations • Examples of reasonable accommodations • Job restructuring • Modified work schedules • Acquiring or modifying equipment • Reassignment to a vacant position • Providing qualified readers or interpreters • Leaves of absence

29. What is Undue Hardship? • EEOC: “’Undue hardship’ means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation.” • To qualify as an undue hardship, the requested accommodation must be one that is either financially impractical or "unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business."

30. ReasonableAccommodations • Common concerns • Poor job performance by an employee with a disability • Employees requesting “light duty” work (e.g., lifting, standing, bending, walking, etc. restrictions) • Employees needing leaves of absence due to a medical condition that might be a disability

31. Leave as a Reasonable Accommodation • EEOC: An employee with a disability may need leave for a number of reasons, such as: • obtaining medical treatment, rehabilitation services, or physical or occupational therapy; • recuperating from an illness or an episodic manifestation of the disability; • obtaining repairs on a wheelchair, accessible van, or prosthetic device; • avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis); • training a service animal (e.g., a guide dog); or • receiving training in the use of Braille or to learn sign language.

32. Red Flags for Leave Policies • Leave policies that automatically terminate employment without engaging in the interactive process to determine: • Whether there are accommodations that would allow the employee to perform the essential functions of the job and/or • Whether additional leave might be a reasonable accommodation

33. Red Flags for Leave Policies • Leave policies that require return to work only when the employee is “100% healed” • Leave policies that do not assess the situation on an individual basis • EEOC: “Modifying workplace policies, including leave policies, is a form of reasonable accommodation.”

34. A Good Leave Policy. . . • Is flexible • Does not automatically terminate employment at the end of a predetermined period • Mandates communication with the employee • Includes an HR evaluation of the situation prior to termination • Does not allow indefinite leave

35. Discrimination Claims: Now They’re About Being Regarded As Disabled • EEOC: In most cases, an individual who claims disability discrimination need not show an actual disability or a record of a disability. • The claimant’s initial burden is met by showing that he or she was “regarded as” disabled. • And the “regarded as” threshold is very low.

36. What Does It Mean to Be Regarded As Disabled? • An individual is “regarded as” disabled if: • The individual is subjected to a prohibited action because of any actual or perceived impairment, • Unless the impairment is “transitory and minor.”

37. What Does It Mean to Be Regarded As Disabled? • It does not require a showing that an impairment substantially limits a major life activity. • It also does not require a record of such an impairment.

38. What does “transitory and minor” mean? • EEOC provides little guidance • Determined “objectively” • “Transitory” = Lasting or expected to last six months or less • “Minor” is left undefined • Examples? • Broken bones • Sprains • Other minor injuries that will heal quickly • Allergies?

39. What is a “prohibited action”? • Examples: refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or the denial of any other term, condition or privilege of employment.

40. What Does This Mean? • An employer may not take an adverse employment action against a qualified individual because of – • any impairment that will last more than 6 months, or • any impairment that is not “minor.” • Disability discrimination cases will no longer turn on whether the claimant has a “disability.” • Instead, the key issues will be: • Was the individual qualified? • Why was the adverse employment action taken?

41. Reminder: What Is Qualified? • The individual must be able to perform the essential functions of the job. • What if job performance concerns are caused by an impairment that is not an actual disability? • HINT: no reasonable accommodation process necessary

42. Why Adverse Action Was Taken • Employers should be prepared to prove that their intent was non-discriminatory. • Document conduct-based or performance-based reasons for actions taken. • Emails, comments, conversations, etc. regarding the individual’s impairment are admissible in evidence. • What will they show about the employer’s intent? • TRAIN

43. William H. Fallon Phone: 616.831.1715 fallonw@millerjohnson.com www.millerjohnson.com