The Shoot Out: Plaintiff’s Counsel v. Defense Counsel ADA/FMLA Issues

1. SHRM-TSC Legislative HR-Round Up April 4, 2013 Austin, Texas Allison Bowers, Esq., Hutcheson Bowers LLP Phil Durst, Esq., Durst, Owen, Levy PLLC Moderated by: Kristin Bauer, Esq., Jackson Lewis LLP The Shoot Out:Plaintiff’s Counsel v. Defense CounselADA/FMLA Issues

2. The FMLA - Oversimplified • It is an “entitlement” law - 12 weeks unpaid/26 weeks military caregiver - Strict liability if employer fails to provide “entitlements” • It prohibits “retaliation” • The challenge - distinguishing between protected and unprotected absences

3. Overview of 2009 FMLA Changes • Military Leave - care for injured service-member - qualifying exigency leave - coverage expanded in 2010 NDAA and 2013 regs. • Regulations - significantly expanded notice process for employers and employees (employer’s failure to comply with notice requirements is interference with FMLA rights) - detailed medical certification requirements - other clarifying provisions

4. ADA Basics

5. ADAAA Definition of “Disabled” The ADAAA defines “disability” as: • a physical or mental impairment that substantially limits one or more major life activities (“actual disability”); or • a record of a physical or mental impairment that substantially limited a major life activity (“record of”); or • when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”). • Likely- (diabetes, hypertension, heart disease, cancer, OCD, epilepsy) • Unlikely – (common cold, seasonal/common flu, sprains, broken bones – but be cautious!) • To be entitled to reasonable accommodation, an individual’s impairment must meet the first or second definition above.

6. ADAAA Changes • Greatly Expanded Coverage • Broadened List of Major Life Activities • Includes operation of “major bodily functions” • Much Relaxed “Substantially Limits” Standard • Significant or severe restriction on major life activity not required • Short duration not disqualifying • Mitigating measures cannot be considered • An individual is “regarded as” disabled if subjected to a prohibited action because of an actual or perceived impairment - even one that does not substantially limit a major life activity

7. What Does This Mean in Practice? Two basic types of disability cases: • Discrimination cases (wrongful employment action) • will all be “regarded as” cases • Reasonable accommodation cases • The focus will be on whether the employer provided reasonable accommodation … • … unless the employer shows: • The individual is not qualified for the job • Providing an accommodation would impose an undue hardship • The individual poses a direct threat

8. Should We Worry About Litigation? YES! • Pre-ADAAA: In 2008 ADA EEOC charges were 19,453 (20.4% of all charges). • Post-ADAAA: In 2012, ADA EEOC charges were 26,379 (26% of all charges) Source: Charge Statistics FY 1997 Through FY 2012, located at EEOC.gov

9. ADA/EEOC Litigation Statistics • ADA Charges Increase • Steady increase every year since effective date of ADAAA! • Total Number of EEOC Lawsuits Filed Goes Down • FY 2008: 325 lawsuits/FY2012: 155 lawsuits • But ADA EEOC Lawsuits Are Up (although lower than 2011)! • FY 2008: 37 ADA lawsuits/FY 2012: 45 ADA lawsuits (80 in FY 2011) • Total Monetary Recovery For ADA Lawsuits Also Rises • FY 2008: $3.6 million recovered for ADA claimants • FY 2012: $5.4 million recovered for ADA claimants Source: EEOC Litigation Statistics FY 1997 through FY 2012 located at EEOC.gov

10. Ready to Litigate? Our Hypo The Players: • The Plaintiff - Suzie Nowerks • The Defendant - Big National Retailer • The Supervisor (night shift) - Hans Zee • The Human Resources Manager - Mary Toobizy • The Alternate Supervisor (day shift) – Barbara All-Business

11. The Trial – Closing Arguments Phil Durst , Esq. Counsel for Ms. Nowerks Allison Bowers, Esq. Counsel for BNR

12. The Jury Charge - ADA • Did BNR regard Ms. Nowerks as disabled when it terminated her employment? • Was Ms. Nowerks substantially limited in a major life activity? • If so, did BNR fail to accommodate Ms. Nowerks? • Did BNR retaliate against Ms. Nowerks because she requested an accommodation?

13. The Jury Charge – FMLA and W/C • Did BNR retaliate against Ms. Nowerks for requesting leave for a serious health condition? • Did BNR interfere with Ms. Nowerks FMLA rights? • Did BNR retaliate against Ms. Nowerks for filing a workers’ compensation claim?

14. What Reasonable Accommodation Means –If Anything? “In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” • Source: EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship

15. What Reasonable Accommodation Means –If Anything? Reasonable Accommodation Does NOT Include: • Removing essential job functions • Diluting uniformly enforced productivity standards • Excusing or forgiving past misconduct or poor performance • Promotion • Bumping an employee from a job • Creating another position or job • Providing personal use items (e.g., wheelchair) • Changing a supervisor (although change in supervisory methods may be reasonable)

16. What Reasonable Accommodation Means –If Anything? Reasonable Accommodations May Include: • 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 • Other similar accommodations

17. Hot Accommodation Topic – Transfer to Vacant Alternative Position • USSC Speaks on Reasonable Accommodation: U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) (noting that  the ADA “specified, namely, that preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal.”) • Pre-Barnett: EEOC v. Humiston-Keeling(7thCir. 2000) (holding employers not required to transfer disabled applicants to vacant positions for which they are qualified if there is another better qualified candidate). • Post-Barnett: EEOC v. United Airlines, Inc. (7th Cir. 9/7/12) (petition for cert filed 12/6/12) (overrules Humiston-Keelingand remands for consideration of (1) whether the plaintiff can show that the accommodation was reasonable on its face or reasonable in the run of cases; and, if that burden is met, (2) whether the employer can show undue hardship under the circumstances).

18. PANEL DISCUSSION

19. QUESTIONS