ADAA EEOC’s Proposed Rules

1. ADAAEEOC’s Proposed Rules Carole F. Dubritsky The University of Michigan Assistant Director and ADA Coordinator Office of Institutional Equity

2. EEOC’s Proposed Regulations • Brief review of history and intent • Key changes • Definitions and interpretations • What did not change • Impact on HR Professionals • Best Practices

3. Intent of the ADAA • Reinstate the intent of Congress to have the ADA construed broadly • Address the U.S. Supreme Court’s decisions which interpreted disability too narrowly • Correct the courts’ and EEOC’s definition of ‘substantially limits’ which established a high standard

4. ADAA Timeline • July 2007 : ADA Restoration Act • September 2008 President signs ADAA • January 1, 2009: Effective date • June 2009: EEOC proposed regs to OMB • OMB reviews proposed regs • September 2009: regs published in the Federal Register • Public comment period ends November 23, 2009 • Back to EEOC for any revisions • Final regs sent back to OMB

5. Key Changes • Expands the definition of “major life activities” • Revises the definition of “substantially limits” • Determines mitigating measures shall not be considered in assessing whether a person has a disability (i.e. substantially limiting) • Addresses impairments that are episodic or in remission • Changes the definition of “regarded as”

6. EEOC Key Changes • Places examples in the regulations rather than the interpretive guidelines • Specificity in the regulations will increase the likelihood courts will defer to EEOC interpretations

7. U.S. Supreme Court Decisions • ADAA rejects the court’s findings in the Sutton trilogy that mitigating measures are considered in determining disability • ADAA rejects the court’s finding in Toyota that demands an impairment ‘severely restrict’ major life activities

8. Definitions that did not change • Definition of qualified • Essential and marginal functions • Interactive process • Reasonable accommodation • Undue hardship • Direct threat

9. Definition of Disability • A physical or mental impairment that substantially limits one or more major life activities • A record of such an impairment • Being regarded as having such an impairment

10. Definition of Disability • ADAA names specific conditions as “covered” • Other conditions are named by EEOC that most likely will be considered as covered • Episodic or conditions in remission most likely will be considered as covered • Evaluation and individual assessment should not be extensive or exhaustive

11. Major Life Activities The former list of examples of major life activities is retained and expanded. The focus, however, has shifted to what a person cannot do. • Caring for oneself, seeing, hearing, eating, sleeping, walking, standing, bending, etc. • ADAA adds, reading, communication, bending • EEOC adds sitting, reaching, and interacting with others in proposed regulations • Inclusion of major bodily functions

12. Major Bodily Functions • Immune system, normal cell growth • Digestive, bowel, bladder • Neurological, brain • Circulatory, respiratory, endocrine, reproductive • EEOC adds hemic, lymphatic, musculoskeletal, special sense organs, skin, cardiovascular, genitourinary in the proposed regulations

13. Impairments that are Episodic or in Remission Considered disabilities if they would substantially limit a major life activity if active • Epilepsy • Hypertension • Multiple sclerosis

14. Impairments that are Episodic or in Remission • Asthma • Not seasonal allergies unless when active would substantially limit a major life activity • Diabetes • Major depression, bipolar disorder, schizophrenia

15. “Substantially Limits” Congress disagreed with post-ADA standards U.S.S.C. – “severely restricts” EEOC – “significantly restricts”

16. “Substantially Limits” • Need not prevent or significantly or severely restrict the individual from performing a major life activity • Not focused on ability, but on what a person cannot perform (change from previous interpretation) • Compare to most people in the general population • Requires “common sense individualized assessment”, not exhaustive or extensive analysis • Little other specificity from EEOC

17. “Substantially Limited” in Working • Usually, but not always, a person will be substantially limited in another major life activity • “type of work” replaces a “class or broad range of jobs” • i.e. commercial truck driving, food service, clerical, law enforcement

18. Impairments that are substantially limiting • ADAA retained blindness, deafness, missing limbs, mobility impairments requiring the use of a wheelchair, etc. • EEOC added: • Autism, cancer, cerebral palsy, diabetes, epilepsy • HIV and AIDS • multiple sclerosis, muscular dystrophy • major depression, bipolar disorder, post-traumatic stress disorder, schizophrenia

19. Impairments that are most often not substantially limiting • Temporary non-chronic impairments of short duration • Little or no residual effects expected or anticipated • Cold, seasonal flu, sprained joint, simple fracture, etc.

20. “Regarded As” • Applies when an action is taken that is prohibited by the ADA (failure to hire, promote; termination, demotion) based on individual’s impairment or perceived impairment, regardless of whether the impairment limits or was perceived to limit a major life activity • Excludes impairments that are transitory (expected to last less than six months) and minor

21. “Regarded As” • The applicant/employee must still be qualified (EEOC will consider performance evaluations) • The employment action may be allowable because of another federal law • Direct threat still applies • Individuals “regarded as” disabled are not entitled to reasonable accommodation

22. “Regarded As” Clarification • Asking an employee who appears to be having difficulty performing a job because of an impairment does not trigger the “regarded as” provision • Asking an employee for medical information as part of the interactive process is permitted where the disability is not obvious and this request does not trigger the “regarded as” provision

23. EEOC Rules of Construction RULE 1 • Focus should be whether discrimination occurred, not whether someone meets the definition of disability • Definition of “substantially limited” should be construed broadly • Individual assessment should not be extensive or exhaustive

24. EEOC Rules of Construction RULE 2 If an impairment substantially limits a major life activity, you do not need to also demonstrate the activity is “of central importance” to daily life

25. EEOC Rules of Construction RULE 3 • If an impairment substantially limits a major life activity there is no need to identify limitations with other major life activities to be substantially limiting RULE 4 • Comparison of a person’s limitations to that of most people in general should be made using common sense analysis

26. EEOC Rules of Construction RULE 5 Impairments lasting less than six (6) months may still be substantially limiting in regards to the application of the “transitory and minor” exception in the “regarded as” provision

27. Potential Shortcomings • Fuzzy guidance regarding “substantially limits “ • Specific impairments are ‘covered’ but employers are still directed to individually assess “substantially limits”, but not exhaustively or extensively • Non-competitive reassignment not addressed by ADAA, EEOC, or U.S. Supreme Court (Huber v. Wal-Mart was settled January 2008 before oral arguments)

28. Impact on HR Professionals • “Not disabled” will be a very difficult defense • Those who meet the definition of disability are not necessarily entitled to an accommodation • The effect of mitigating measures cannot be considered in evaluating whether a person has a disability • The effect of mitigating measures can be considered in when evaluating the need for a reasonable accommodation

29. Impact on HR Professionals EEOC Regulations when finalized will be retroactive to January 1, 2009 • Review your policies and practices, now • Review and revise your documentation procedures if needed, now • Provide information and overview to managers and supervisors, now

30. Some Best Practices • If absence or leave is an issue, always consider the implications of FMLA first • Engage and focus on the interactive process • Make sure documentation is clear and complete, and follows procedures • Have up to date job descriptions (3-5 rule)

31. Some Best Practices • Clearly separate issues of performance, attendance, and behavior • Keep the process simple, be flexible whenever possible • Consider “trial accommodations” • Do not rely on supervisors to determine disability

32. Questions and Comments