Presentation Transcript

1. ADAAARegulations: Who Is and Is Not Disabled?

   Presented by Summer Austin Davis
2. ADAAA EFFECTIVE DATES:Law: January 1, 2009Regs: May 24, 2011
3. ADAAA PURPOSE: Expand the definition of the term disability Construe the definition “broadly in favor of coverage” Focus on compliance Focus on accommodation EEOC charges up 17%
4. ADAAA APPLICATION These changes affect all of the other ADA provisions (public accommodations, state and local governments) all of the Rehabilitation Act provisions (federal employment, federal contractors, recipients of federal monies)
5. Finding the Regulations Final Rule: http://www.eeoc.gov/laws/regulations Questions and Answers Fact sheet
6. Definition of a Disability is Still: a physical/mental impairment that substantially limits one or more major life activities (MLAs); a record of such impairment; OR being regarded as having such an impairment
7. What is a “Physical or Mental Impairment”? Very broad Physiological disorder or condition, cosmetic disfigurement or anatomical loss that affects almost any body system Laundry list of body systems: neurological, musculoskeletal, reproductive, skin, etc. Regulations add immune and circulatory systems
8. Jane started last about 3 months ago. She mentions to you that she is undergoing fertility treatments and may need some time off related to those treatments, as well as the side effects of the medication. What should you do?
9. Is Jane Disabled? Impairment to her reproductive system Doesn’t affect her ability to do her job (so far)
10. Mental and Psychological Disorders are Covered Intellectual disability (formerly mental retardation) Organic brain syndrome Emotional or mental illness Learning disabilities
11. Jonathan’s coworkers cometo you complaining that heis talking to himself and they think he is bipolar and may be off his meds. They are concerned he may become violent. He is still doing his duties and has never exhibited any kind of violent tendencies.What should you do?
12. What Should You Ask Jonathan? “How is everything going?” “I heard you are bipolar – is that true?” “You seem distracted -- has your doctor changed your medication?” “I have noticed you are acting strangely – I am concerned about you as a friend – are you bipolar?”
13. 9 Rules of Construction for when an Impairment “substantially limits a major life activity” Broad standard– not demanding As compared to most people in the general population– but need not prevent or severely restrict—BUT not everything will qualify Should not demand extensive analysis– focus on whether discrimination has occurred Individualized assessment and not as strict as the old standard
14. 9 Rules Continued: 5. Should not require scientific, medical or statistical analysis Don’t consider mitigating measures (but you can consider regular eyeglasses or contact lenses) Episodic impairment or those in remission still count if they limit when active Only needs to limit one MLA
15. 9th Rule: 9. Impairment lasting fewer than 6 months can qualify Transitory and minor only applies to “regarded as” cases Ask whether the person can perform the MLA– not how long she is going to be out of commission
16. What is a major life activity (MLA)? NOT merely activities that are of central importance to most people’s daily lives Non-exhaustive list: Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating Interacting with others
17. MLA also includes: Operation of major bodily functions Immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, brain, etc. INCLUDES operation of a specific organ– kidney failure, etc.
18. Short Term Impairments Transitory and minor impairments– only considered in the “regarded as” category No bright lines Must engage in the interactive process No more “must be able to return to work full duty without restrictions” Look at maximum leave policies
19. Cindy broke her leg in a car accident. She has been off for 3 months and has exhausted her available leave (FMLA too). She says she is still in bed and her doctor hasn’t released her to return to work. Now what?
20. Episodic/In Remission Impairments These are covered Epilepsy Hypertension Asthma Diabetes Bipolar disorder Schizophrenia Don’t ask about prognosis– just accept it
21. Hazel is a good accountantbut she has Hepatitis C that flares up every now and then, causing her to miss work. Last year she used up almost all of her FMLA leave. She has applied for the supervisor position. You are concerned because a supervisor needs better attendance than she has demonstrated.
22. Mitigating Measures Includes anything that eliminates or reduces the symptoms or impact of an impairment Medication Medical Equipment Prosthetic limbs Hearing aids Regulations add psychotherapy, behavioral therapy and physical therapy
23. More about Mitigating Measures Can’t consider the positive aspects of a mitigating measure in determining that someone is not disabled That Virginia gets around great on her prosthetic leg does not mean she is not disabled Should consider the negative affects in same determination The side effects of John’s blood pressure medication may qualify him as disabled
24. Mitigating Measures in other contexts Reasonable accommodations Virginia’s prosthetic leg may mean she doesn’t need a reasonable accommodation to do her job Direct threat John’s blood pressure medication may make him “loopy” and unsafe to operate his forklift
25. Requiring Mitigating Measures You can’t require that an employee use a mitigating measure Sarah doesn’t like using her hearing aid and you can’t force her to use it Employee’s failure to use the mitigating measure may make them not qualified for the job or a direct threat If Sarah can’t hear, she can’t hear the forklifts on the floor and poses a safety threat
26. ALMOST ALWAYS COUNTS Deafness Blindness Intellectual disability Missing limbs Mobility requiring the use of a wheelchair Autism Cancer Cerebral palsy
27. MORE ALMOST ALWAYS COUNTS Diabetes Epilepsy HIV infection Multiple sclerosis Muscular dystrophy Major depressive disorder Bipolar disorder PTSD, OCD, schizophrenia
28. Is Everything a Covered Disability?
29. Regulations Still Exclude: Current illegal drug use Undergoing rehab is different Pregnancy But watch out for impairments resulting from pregnancy (e.g., gestational diabetes) Sexual behavior disorders (cross-dressing, pedophilia, voyeurism), compulsive gambling, kleptomania or pyromania, homosexuality or bisexuality
30. Changes to “Regarded As” Before: Is not disabled but is treated as if they are disabled Now: Has an actual or perceived impairment AND Has been discriminated against because of the impairment
31. Regarded As Impairments Employee does not need to prove that the impairment limits him in any way (actual or perceived) Cannot be something transitory (lasting fewer than 6 months) AND minor (trivial) Defense is that the person is not qualified or posed a direct threat
32. Regulations Do Not: Change worker’s compensation or disability standards Create a “reverse disability” claim Change the standard for whether a person is qualified Change the standard for what is a reasonable accommodation and when you can deny one Change direct threat analysis
33. Who is Qualified? Can perform the “essential functions” of the job with or without reasonable accommodation Pre-existing job description good evidence of essential functions Attendance can still be an essential function Keep an eye on essential vs. tangential functions
34. What is a Reasonable Accommodation and When Can You Refuse to Grant it? Anything that enables employee to perform a job’s essential functions (e.g., modified schedule, interpreter, etc.) What will the accommodation cost as compared to the job?
35. More about Reasonable Accommodations Do not have to eliminate an essential function (but may have to eliminate non-essential functions) Caution supervisors about “unofficial” accommodations Employee may make unreasonable demands -- you don’t have to give him just anything Alternative that works is just as good
36. Not everything is reasonable Accommodation that poses undue financial and administrative burdens is not reasonable (per 11th Circuit) Undue hardship standard
37. Does the Person Pose a Direct Threat? Does the person pose a significant risk of substantial harm to self or others health or safety? Individualized assessment Consider medical evidence Consider duration of risk, nature and severity of potential harm, likelihood of harm, imminence of potential harm
38. QUICK NOTE ON MEDICAL INQUIRIES
39. Pre-Hire: Don’t Even Ask Ask about ability to perform specific job functions NEVER ask about whether someone has a disability or just how bad it is JUST ASKING IS A VIOLATION (even if the person isn’t disabled)– Harrison v. Benchmark Elec., (11th Cir. 2010)
40. Post-Offer but Not Yet Working Can require medical exam can’t pick on the disabled person everyone or no one Keep the information confidential
41. Employees– don’t ask unless you really need to know Job-related and consistent with business necessity Temporary employees may be considered pre-hire

42. QUESTIONS?