THE NEW ADA: CONFORMING TO THE EEOC S FINAL REGULATIONS

1. SCHOOL LAW SEMINAR October 14, 2011 THE �NEW� ADA:CONFORMING TO THE EEOC�S FINAL REGULATIONS

2. NEW eeoc REGULATIONS EXPANDED THE SCOPE OF INDIVIDUALS THAT MAY FALL WITHIN THE ada�S DEFINTION OF THE TERM DISABILITY

3. Employers� duty: provide �reasonable accommodations� to �qualified individuals with disabilities� that allow the individuals to perform the essential functions of their jobs.

4. Disability 1. A physical or mental impairment that substantially limits one or more major life activities of such individual; 2. A record of such an impairment; or 3. Being regarded as having such an impairment.

5. �Substantially limits� is a demanding standard. �Impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people�s daily lives.� �Impairment�s impact must be permanent or long term.� Toyota Motor Mfg., Kentucky, Inc. v. Williams

6. Sutton v. United Airlines ADA only applies to impairments that were unmitigated by outside measures.

7. Berg v. Norand Corporation Not every physical or mental impairment �counts� for ADA purposes. Most disabilities from which people suffer do not have a substantial enough effect on their major life activities.

8. AMERICANS WITH DISABILITIES AMENDMENTS ACT OF 2008 Overruled decisions from the Supreme Court that narrowly interpreted the ADA Effort to broaden protection afforded to disabled individuals.

9. Mitigating Measures Medical devices like hearing aids and prosthetics, as well as medication in general, can no longer be considered in determining whether a major life activity is being substantially impaired. Disability determination

10. Disability determination �Substantially Limits� The ADAAA specifically rejects the Supreme Court�s ruling that the terms �substantially� and �major� in the definition of disability �need to be interpreted strictly.�

11. Disability determination Major Life Activities The Sutton court defined the term �major life activities� as activities that are of �central importance to most people�s daily lives.� ADAAA specifically rejects that definition.

12. New eeoc regulations Physical or Mental Impairment Any psychological disorder or condition. Any mental or psychological disorder. Does not include physical characteristics.

13. New eeoc regulations Major Life Activities Regulations expand on the ADAAA�s new definition of major life activities. The list of major life activities is non-exclusive and liberally construed.

14. New eeoc regulations Substantially limits One of the most significant changes. The standard is not meant to be a demanding standard and is to be construed broadly. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.

15. New eeoc regulations Mitigating Measures The determination of whether an impairment substantially limits a major life activity does not consider the effects of mitigating measures. Mitigating measures include medication, prosthetics, hearing aids, medical supplies, and physical therapy. The determination is unaffected by whether the individual chooses to forego mitigating measures. Employers cannot require employees to take advantage of mitigating measures.

16. Reasonable accommodations The ADAAA and the new EEOC regulations generally do not change the process. Only expand the group of employees for which employers must engage in the interactive process or provide reasonable accommodations.

17. ADA imposes a duty upon employers to engage in an �interactive process� with employees whenever the employer has knowledge of the employee�s disability. Unless an employee�s need for accommodation is obvious, the employee bears the burden of requesting the accommodation. Reasonable accommodation

18. Reasonable accommodation Interactive Process Four step interactive process Identify the essential functions. Determine how the disability limits the performance of one or more essential job functions. Identify accommodations. Select an appropriate accommodation.

19. Reasonable accommodation Scope of Duty Does not mean the employer must lower its performance expectations, reallocate essential job duties, create new jobs, or reassign a disabled employee to the position of another employee.

20. The upshot is that more people will qualify for protection under the ADA. Practical tips and guidance

21. Practical tips and guidance Certain mental impairments now specifically fall within the scope of the ADA. For example: major depressive disorder bipolar disorder post-traumatic stress disorder obsessive compulsive disorder

22. Practical tips and guidance Focus on the interactive process. Review job descriptions to ensure they identify the essential functions of the job. Review employment policies and procedures. Maintain detailed written records of efforts to engage in the interactive process.

23. The recovering patient Diagnosed with cancer 10 years ago. Cancer went into remission 6 years ago. No other medical conditions. Is Teacher D disabled?

24. The hard of hearing receptionist Legally deaf. Wears invisible hearing aids that completely mitigate her hearing problems. Has no health impairments of any nature. Is receptionist considered disabled?

25. Fell and broke his leg. Able to walk using crutches. Is he disabled? PE teacher with a broken leg

26. Perfectly healthy employee Employee J�s relative was recently diagnosed with Alzheimer�s disease. Rumor develops in the office that Employee J has the disease. Supervisor K begins to subtly reduce Employee J�s workload. New position is part-time. Has District I, through Supervisor K, violated the ADA?

27. Injured his back. Unable to lift objects weighing more than ten pounds. Is he disabled? Custodian with a bad back

28. Questions?