2010 ADA CHANGES : How They Affect Workers’ Compensation and Employer Liability

1. 2010 ADA CHANGES:How They Affect Workers’ Compensation and Employer Liability Presented by: Naomi L. Mooney, Esq. Getman, Schulthess & Steere, PA Three Executive Park Drive Bedford, NH 03110 603-634-4300

2. THE ADA • The ADA signed into law 1990 • EEOC is responsible for enforcing Title I of the ADA • ADA prohibits employment discrimination against individuals with disabilities. • The Act requires employers to make reasonable accommodations to employees and job applicants with a disability • Reasonable accommodations are required unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity

3. Definition of “Disability”Under ADA • A physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment.

4. Reasonable Accommodation Examples include: • (A) making existing facilities readily accessible to and usable by individuals with disabilities; and • (B) job restructuring, part-­time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters. • Basically what is required is what the company can bear.

6. Undue Hardship • In general. - The term “undue hardship” means an action requiring significant difficulty or expense company-wide.

7. Undue Hardship • Factors to be considered in determining whether an accommodation would impose an undue hardship on a covered entity: • the nature and cost of the accommodation • the overall financial resources of the facility • the number of persons employed at such facility • the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility • the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce

8. Americans With Disabilities Act Amendments Act of 2008 (ADAAA) and the New Regulations

10. September 25, 2008,President Bush signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act," the "ADAAA," or "Act"). • Effective on January 1, 2009. • The regulations are not yet final. The EEOC will evaluate all of the comments and make revisions in response to those comments. • A proposed final regulation will be coordinated with various federal agencies before a final regulation is issued.

11. Important Specifics of the ADAAA • The definition of disability should be construed in favor of broad coverage. • The intent of Congress is to amend the definition of disability to cover more people and as a result “prevent more discrimination”. • The result is that question of disability will no longer be significant focus in litigation. Instead, the focus is on whether discrimination has occurred.

12. ADAAA Changes Definition of the Term “Disability” • The ADAAA makes changes to the definition of the term "disability“ in response to US Supreme Court decisions (Murphy and Toyota). • Murphy and Toyota held that physical and mental impairments did not rise to the level of an ADA protected disability if the impairment was controlled by medication or by assistive devices such as hearing aids, or if they did not prevent or restrict an employee from performing a major life activity such as walking or working.

13. Murphy v. United Parcel Service, Inc.,527 U.S. 516 (1999) • UPS terminated Vaughn Murphy from his job as a' UPS mechanic because of his high blood pressure which exceeded the Department of Transportations requirements for drivers of commercial vehicles. • Mr. Murphy brought suit under Title I of the ADA. • The Court held that since when Mr. Murphy is medicated he is inhibited only in lifting heavy objects but otherwise functions normally, he was not "disabled" under the ADA. • The Court also found that Mr. Murphy was not "regarded as" disabled because of his high blood pressure.

14. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) • Williams was a worker at an automobile manufacturing plant. She was diagnosed with bilateral carpal tunnel syndrome and bilateral tendonitis. • Toyota provided various accommodations to her job and duties. Sometime later she began to experience pain in her neck and shoulders and was further diagnosed with additional medical ailments. • She was placed on a "no-work-of-any-kind" restriction. • The District Court granted summary judgment to Toyota holding that Ms. Williams' impairment did not qualify as a "disability" under the ADA because it did not "substantially limit" any "major life activity.“ • The Sixth Circuit reversed and the Supreme Court reversed and remanded on the basis that the Sixth Circuit had failed to apply the proper standard.

15. ADAAA Definition of “Disability” • Under ADAAA the basic three-part ADA definition is retained: a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment. However, the meaning of these terms has changed.

16. Rules Used to Determine Whether Someone Has a “Disability”under ADAAA • An impairment need not prevent, or significantly or severely restrict, performance of a major life activity to be “substantially limiting.” • Disability “shall be construed in favor of broad coverage” and “should not require extensive analysis.” • An individual’s ability to perform a major life activity is compared to “most people in the general population,” often using a common-sense analysis without scientific or medical evidence. • An impairment need not substantially limit more than one major life activity.

17. Examples of Disabilities Under ADAAA • Impairments that will consistently result in a determination that the person is substantially limited in a major life activity”: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. • Impairments that may be substantially limiting for some individuals but not for others, and therefore may require somewhat more, though still not extensive, analysis: asthma, high blood pressure, back and leg impairments, learning disabilities, panic or anxiety disorders, some forms of depression, carpal tunnel syndrome, and hyperthyroidism.

18. More Examples Illustrating Definition of Disability under ADAAA • Temporary, non-chronic impairments of short duration with little or no residual effects that usually will not substantially limit a major life activity: common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone expected to heal completely, appendicitis, and seasonal allergies. • An impairment may still be substantially limiting even if it lasts or is expected to last fewer than 6 months, such as a 20-pound lifting restriction lasting several months.

20. PREGNANCY AND THE ADAAA • Pregnancy may be the newest protected disability under the ADAAA • ADAAA does not address pregnancy but the EEOC in its Questions and Answers about the proposed regulations for the ADAAA stated: "Certain impairments resulting from pregnancy, however, may be disabilities if they substantially limit a major life activity."  • EEOC statement leaves a lot of room for interpretation - enough room that employers should think carefully before denying accommodations to pregnant employees.

21. SUBSTANTIALLY LIMITS • The ADAAA revises the definition of the term “substantially limits" by providing that a limitation need not "significantly" or "severely" restrict a major life activity in order to meet the standard, and deletes reference to the terms "condition, manner, or duration" under which a major life activity is performed.

22. Major Life Activities (MLAs) ADAAA expands the definition of “major life activities” through two non- exhaustive lists: • MLAs include “major bodily functions,” such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular systems, and reproductive functions. • MLAs also include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, sitting, reaching, interacting with others, and working.

23. Mitigating Measures Generally Ignored under ADAAA • Positive effects of mitigating measures (except for ordinary eyeglasses and contact lenses) are ignored in determining whether an impairment is substantially limiting. • Examples of mitigating measures include medication, medical equipment and devices, prosthetics, hearing aids, cochlear implants and other implantable hearing devices, low vision devices, mobility devices, oxygen therapy, use of assistive technology, reasonable accommodations and auxiliary aids or services, behavioral or neurological modifications, and surgical interventions that do not permanently eliminate an impairment. • Ordinary eyeglasses and contact lenses are lenses “intended to fully correct visual acuity or eliminate refractive error.”

24. Impairments that Are Episodic or in RemissionCan be a Disability under ADAAA • ADAAA provides that an impairment that is “episodic” or “in remission” is a disability if it would substantially limit a major life activity when active. Examples of impairments that are episodic or in remission include epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, schizophrenia, and cancer.

26. “Regarded As” under ADAAA • Employer regards an individual as having a disability if it takes a prohibited action based on an actual or perceived impairment that is not transitory (lasting or expected to last for six months or less) and minor. • For example, taking an adverse employment action based on a sprained wrist and broken leg expected to heal normally does not amount to regarding an individual as having a disability, because these impairments are transitory and minor. • Taking an adverse action based on carpal tunnel syndrome or Hepatitis C, or on a 2-day virus that an employer perceived to be heart disease, would amount to regarding an individual as having a disability.

27. “Regarded As ” • Actions taken on the basis of an impairment’s symptoms (e.g., a facial tic related to Tourette’s Syndrome) or an individual’s use of mitigating measures (anti-seizure medication for epilepsy) are actions taken on the basis of an impairment.

28. “Regarded As ” • Reasonable accommodations are not available to someone only covered under the “regarded as” prong of the definition of “disability.”

29. Uncorrected Vision Standards • ADAAA provides that qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision shall not be used unless shown to be job related for the position in question and consistent with business necessity.

30. The Impact of the ADAAA • It is predicted that there will be an increase in the number of requests by employees for disability-based accommodations and that it may also lead to a rise in discrimination claims.

31. The Impact of the ADAAA • As a result the ADAAA employers will be less likely to have cases dismissed on summary judgment since it will be more difficult to allege that a claimant is not disabled

32. The Impact of the ADAAA • the focus in litigation will shift from attempts by employers to argue that an employee is not "disabled" under theories related to "major life activities" or "substantially limited" to a focus on issues such as essential job functions, reasonable accommodations and qualifications.

33. TIPS FOR REASONABLE ACCOMODATIONS ISSUES • Be Proactive: Determine whether an employee is in need of an accommodation • Interactive Process: Involve the employee as well as medical and disability professionals • Effective Accommodation: Accommodation must be effective, not most preferred by employee • Job Restructuring: Being aware of the essential functions of the job is most critical • Undue Hardship: Must be unduly costly company-wide, and must significantly impact operations

34. Practical Tips Offered by Job Accommodations Network (a service of the Office of Disability Employment Policy of the U.S. Department of Labor) • Review job. descriptions, qualification standards, and accommodation procedures. • Focus on Performance and Conduct. • Train frontline supervisors and managers. • Document Actions and Decisions.

35. Selected Recent Cases • Corosa v. Nashua Housing Authority and George F. Robinson, (DNH), March 24,2010 • The Court denied the Nashua Housing Authority‘s motion to dismiss stating that the plaintiff need not prove his entire case in his complaint but rather must only have alleged sufficient facts to show that his claim is plausible on its face, but granted the motion to dismiss as to the defendant, George F. Robinson on the basis that there is no individual liability under the ADA.

36. Duhy v. Concord General MutualInsurance, (DNH), June 10,2009 • The ADA Amendments Act of 2008 does not apply retroactively, so the Court applied the ADA as it existed when the complained-of acts occurred

37. 2010 ADA CHANGES:How They Affect Workers’ Compensation and Employer Liability Presented by: Edwinna Vanderzanden, Esq. Getman, Schulthess & Steere, PA Three Executive Park Drive Bedford, NH 03110 603-634-4300

38. Some Impairments Will Now Consistently Meet the Broader Definition of Disability:

39. Mental Health Diagnoses Will Consistently Meet the Broader Standards For Disability Metal Retardation (n/k/a/ initellectual diability), Autism, Major Depression, Bi-Polar Disorder, Post Traumatic Stress Disorder, Obsessive Compulsive Disorder, Schizophrenia, are all now covered

40. Deafness, Blindness • Partially or completely missing limbs, • Mobility impairments requiring use of wheelchair (note wheelchairs are mitigating measures), Cerebral Palsy, Multiple Sclerosis, Muscular Dystrophy • Cancer • Diabetes (in the past a frequent source of litigation) • Epilepsy • HIV/AIDS

41. Other Impairments May be Considered Disabilities in Some Circumstances • Asthma • Back and leg impairments • Learning Disabilities

42. For instance, impairments that are episodic i.e. seizure disorders or in remission i.e. cancer will be considered disabilities,. • Disabilities that might otherwise have been “mitigated” under the prior law will now consistently meet the definition of disability, i.e. Diabetes

43. There are a number of temporary non-chronic impairments with short duration and little or no residual effects that will generally not be considered disabilities under the amendments:

44. Excluded Conditions • Common Cold • Seasonal Influenza • Sprained Ankle • Minor or non-chronic GI disorders • Bone fractures that are expected to heal completely

46. Some are Automatically excluded eg. Illegal drug users, except those who have gone through rehab and no longer engage in the illegal use of drugs could meet the definition of disability

48. The ADA Absolutely Excludes from Definition of Disability : • Transvestism, Transexuals • Pedophilia, Exhibitionism & Voyeurism • General Identity Disorders (not resulting from physical impairments) or Other Sexual Behavior Disorders • Compulsive Gambling, Kleptomania • Pyromania • Psycho-active Substance Use Disorders

50. While Pregnancy is still not a disability under the ADA, there may be impairments resulting from pregnancy that could substantially limit life activities such as significant post-partum depression or residuals of toxemia