INTRODUCTION Mary Ellen Simonson Lewis and Roca, LLP

ADA and FMLAWhat In-House Counsel and Human Resource Professionals Need to KnowIf you are experiencing any technical difficulty, or if you are unable to listen to the webinar through your computer, please contact Technical Support toll-free at 1-866-229-3239

INTRODUCTIONMary Ellen SimonsonLewis and Roca, LLP

Presenters Moderator: • Mary Ellen Simonson Lewis and Roca, LLP, Phoenix, AZ Speakers: • Kevin Leblang Kramer Levin Naftalis & Frankel LLP, New York, NY • Ian Cooper Tueth Keeney Cooper Mohan & Jackstadt, P.C., St. Louis, MO • Jonathan Crotty Parker Poe Adams & Bernstein, LLP, Charlotte, NC • Felicia Reid Curiale Hirschfeld & Kraemer, LLP, San Francisco, CA • Susan Stahlfeld Miller Nash LLP, Seattle, WA • G. Joseph Curley and Joseph Santoro GunsterYoakley & Stewart, P.A., West Palm Beach, FL

ADA Amendments Act of 2008 (“ADAAA” or “the Act) • Signed into law by President George W. Bush, on September 25, 2008. • Reinstating a broad scope of protection for individuals with disabilities by broadening the previously narrowly interpreted definition of “disability.” • Rejecting the Supreme Court’s decision in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). • Rejecting the Supreme Court’s decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).

ADA Amendments Act of 2008 (“ADAAA” or “the Act”) • The ADAAA goes into effect on January 1, 2009. • Impact of the Act on the EEOC: The EEOC is currently working to amend its regulations to conform to the ADAAA making it easier to establish a substantially limiting physical or mental impairment. • Impact of the Act on employers: The disposition of disability claims will become increasingly complex and challenging.

Defining “Disability” • The old definition of “disability” remains intact: The ADAAA does not alter the ADA’s three-part definition of disability. • A disability is a physical or mental impairment that substantially limits one or more major life activities of an individual.

Defining “Disability” • It also includes having a “record of” such an impairment or being regarded as having such an impairment. • The new twist on the definition of disability: The ADAAA expressly states that the definition of disability “shall be construed in favor of broad coverage of individuals” and “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”

Interpreting the “Substantially Limits” Facet of Defining Disability • Old rule: The Supreme Court ruling in Toyota Manufacturing, Kentucky, Inc. v. Williams,534 U.S. 184 (2002) held that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled” and that to be substantially limited in performing a major life activity under the ADA a person must have an impairment that “prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”

Interpreting the “Substantially Limits” Facet of Defining Disability • New rule: The term “substantially limits” is retained, however, the Act rejects the Court’s interpretation of “substantially limits” as “prevents or severely restricts,” because it creates too demanding a standard for qualifying as disabled. Further, the Act clarifies that an impairment that “substantially limits one major life activity need not limit other major life activities in order to be considered a disability.”

Interpreting the “Substantially Limits” Facet of Defining Disability • Impact of the new rule on the EEOC: The EEOC currently defines the term “substantially limits” as “significantly restricts.” The Act calls on the EEOC to broaden its definition of “substantially limits” to expand those impairments covered by the Act.

Expanded Definition of Major Life Activities • Old rule: Under Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), “major life activities” are activities that are of “central importance to daily life.” The Court held that the terms “substantially” and “major” in the definition of disability were to be “interpreted strictly to create a demanding standard for qualifying as disabled.” However, there was no list of specifically enumerated “major life activities.”

Expanded Definition of Major Life Activities • New rule: The ADAAA, provides two non-exhaustive lists of activities to always be considered major life activities. • The first list includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. • The second list enumerates major bodily functions, including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Expanded Definition of Major Life Activities • Impact of the new rule on the EEOC: The EEOC has been expansive in its interpretation of “major life activities” and has included among other activities caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working as major life activities. However, the ADAAA for the first time expands the definition of “major life activities” by specifically listing various bodily functions. • The relaxation of the “substantially limits” standard in conjunction with the expanded list of major life activities will undoubtedly increase the number of employees who can make a valid disability claim.

Mitigating Measures Can No Longer Be Considered • Old rule: In Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), the Supreme Court held that if a person takes measures “to correct for, or mitigate, a physical or mental impairment, the effects of those measures – both positive and negative – must be taken into account when judging whether that person is ‘substantially limited’ in a major life activity.” The Court further held that a “disability exists only where an impairment ‘substantially limits’ a major life activity, not where it ‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken.”

Mitigating Measures Can No Longer Be Considered • New rule: The determination of whether an impairment limits a major life activity must be made without regard to the ameliorative effects of mitigating measures, such as: • Medication and medical supplies • Equipment and appliances • Prostheses, hearing aids and mobility devices • Oxygen therapy equipment and supplies • Assistive technology • Reasonable accommodations • Auxiliary aids or services, or • Learned behavior or adaptive neurological modifications.

Mitigating Measures Can No Longer Be Considered • Narrow exception to new rule: • Eyeglasses or contact lenses can be considered in assessing whether an impairment substantially limits a major life activity.

Individuals “Regarded As” Having a Disability • Old rule: The Supreme Court in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), held that individuals who claimed that they were “regarded as” disabled needed to show that their employer mistakenly thought they had an impairment that substantially limited a major life activity. • New rule: An individual meets the requirement of being “regarded as” having an impairment if “the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

Individuals “Regarded As” Having a Disability • Exception to new rule for transitory or minor impairments: • Individuals with “impairments that are transitory or minor,” meaning the impairment is expected to last less than six months, cannot make “regarded as” claims. • Reasonable accommodations: • Reasonable accommodations do not need to be provided to individuals “regarded as” disabled. Therefore, this category of disability will be less important for employees seeking a reasonable accommodation as compared to those making an adverse action claim.

ADAAA Litigation Challenges for Employers • The extent of disability litigation nationwide • 17,734 charges of disability discrimination filed with the EEOC in 2007 (behind race, gender, age and retaliation) – http://www.eeoc.gov/stats/charges.html • Over 2,000 U. S. District Court decisions involving the ADA in the last 12 months • Over 300 U.S. Courts of Appeal decisions involving ADA in the past 12 months • Assuming $100,000 spent in defense of each litigated case, over $230,000,000 spent by employers litigating disability claims brought under ADA each year. • Other impacts: HR compliance time and effort, investigating and dealing with charges, verdicts/judgments, etc.

ADAAA Litigation Challenges for Employers • Will the amendments change the landscape of litigation under ADA? • Assuming that ADAAA’s “broad coverage,” will cases be decided differently as to whether persons are “disabled?” • What about the other defenses employers raise to ADA claims; how will they be impacted?

ADAAA Litigation Challenges for Employers • Cases that may have been decided differently post-amendments • Numerous appeals court cases disposing of claims by holding that the employee is not “disabled” – that the impairment does not substantially limit a major life activity. • McNeill v. Wayne County (lupus and thrombocytopenia) • Nicholson v. W. Penn Allegheny Health Sys. (depression and PTSD) • Sarmento v. Henry Schein, Inc. (back injury)

ADAAA Litigation Challenges for Employers • Cases that may typify post-amendment battles • Is the employee “regarded as” disabled? • Daugherty v. Sajar Plastics, Inc. (perception of being unable to perform broad range of work versus essential functions of job) • Can the employee perform the essential functions of the job (is he or she a “qualified” individual)? • Melendez-Santana v. P.R. Ports Auth. (total disability finding) • Kellogg v. Energy Safety Servs. (driving and “safety sensitive” work) • Willi v. Am. Airlines, Inc. (attendance)

ADAAA Litigation Challenges for Employers • More cases that may typify post-amendment battles – accommodation disputes • Is the employee’s request for an accommodation reasonable? • Filar v. Bd. of Educ. (request for transfer in violation of CBA, or to conduct costly research about transfers unreasonable) • Is the accommodation offered by the employer sufficient? • Santacrose v. CSX Transp., Inc. (using sick and FMLA leave to avoid overtime) • Was the interactive process enough? • Brady v. Wal-Mart Stores, Inc. (interactive process required even if employee does not request an accommodation)

ADAAA Litigation Challenges for Employers • Conclusions regarding post-amendment litigation • More employees will be considered actually or regarded as disabled. • Employers will seek to defend cases on facts relating to employee’s ability to perform (“qualification”), rather than on employee’s classification as disabled or non-disabled. • More claims for accommodation for persons whose conditions were not previously viewed as disabling within the meaning of the ADA. • Fewer summary judgments, more litigations, and more cost.

New Rules Governing Construction of the ADA 1. Require that the term “disability” must be interpreted in favor of broad coverage of individuals. 2. Direct that an impairment that substantially limits one major life activity need not limit other major life activities to constitute a legally protectable disability. 3. Provide that individuals who suffer from episodic impairments or impairments, even if in remission, including cancer are nevertheless protected under the ADA as long as the impairment would substantially limit a major life activity when the impairment is active.

How Does this Impact the Way an Employer Must Deal with the ADA? Absent these new rules of construction, most of the time, under the old rules, the individual was not “disabled” and, therefore, examples of what wasn’t covered may now be covered. Common examples would include cancer, epilepsy, diabetes, muscular dystrophy, intellectual disabilities, multiple sclerosis, head trauma, cerebral palsy, heart conditions, mental illness, HIV immune disorders, liver disease, kidney disease, dyslexia, learning disabilities, and the list continues.

What Will the Impact Be to Employers? • More requests for accommodation. • More internal review and, in the case of a close call, the employee will be regarded as disabled and covered. • More EEOC charges. • More potential lawsuits. • More retaliation complaints, less summary judgments, dismissal and early conclusions are likely. • Longer case and more trials.

How to Cope:Employers’ Responsibilities • If a request is made for a reasonable accommodation, whether those words are used or not, the employer will be duty bound and prudent to give the request careful consideration. • The process/protocol/policy you were using will likely require change to address the ADA amendments. The handling of disabilities issues will now necessarily involve an information gathering process to enable documentation of the disability, the reasonable accommodation, or the inability to provide reasonable accommodation.

How to Cope:Employers’ Responsibilities • The presumption will be that a reasonable accommodation is necessary unless proof of an undue hardship can be established. The burden will be on the employer. The employer’s analysis will be crucial and should be documented and approved. • The bottom line – previously the burden was on the employee to establish a legally protected disability, which the courts made close to impossible and now the burden will be on the employer to show otherwise. The employer will then likely face the burden of establishing that a reasonable accommodation was given or that it would have imposed an undue hardship.

Employers’ Responsibilities • Reasonable accommodations will now be given substantial consideration and should be carefully documented. • The accommodations will regularly now include such issues as: • Reassignments • Equipment modification • Alternative help • Job restructuring • Leave • Helpers

Employer Protocols • Production standards. • Careful consideration of essential functions and job descriptions. • Discussion – give and take – with employees about accommodations requested and the accommodations that an employer must legally provide – not necessarily the same. • Requesting medical documentation.

Addressing the Amendments • Address job descriptions and related documentation to consider essential job functions, job production standards and related criteria. • Review all data and information concerning job qualifications and essential functions which would include internal posting, job advertisements, and the like. • Supervisor training to include: • Focus on job qualifications; • Training regarding American With Disability Act requirements; • Training to document essential job junctions; • Give and take training for communications concerning accommodations and consideration of what is reasonable or unreasonable.

Employers Must: • Understand and learn that the ADA is now a regular part of the daily employment atmosphere; • Seek assistance to construct policies and procedures and ongoing practices to incorporate the ADA, and avoid ADA claims and lawsuits; • Construct protocols, policies and procedures, job descriptions, job advertisements, and related documents to ensure ADA compliance and also to provide a fair and accurate mechanism to establish essential job requirements; • Invest early to understand ADA and develop training, realizing that such an investment is prudent and efficient over the long haul.

In-House Counsel and HR Professionals • Quickly develop open and mandatory line of communication on ADA. • Counsel must remain close to process until training and prudent, considered decision making are in place. • Learn to recognize and address disabilities, as well as reasonable and unreasonable accommodation requests. • Advise regarding interaction with medical treatment providers. • Advise regarding medical care providers’ opinions of reasonable accommodations and abilities to perform essential job functions. • Document job actions concerning potentially disabled employees in a manner that the job action was not impacted by the alleged disability; • When job actions involve employees having disabilities or medical issues, review carefully and document the job action, performance review, performance criteria, etc. in a manner compliant with the ADA.

Impact of ADAAAin California Workplaces • Definition of disability under California Fair Employment & Housing Act (FEHA) is more expansive than pre-amendment ADA, and remains more expansive after ADAAA amendments. • Broadly construed • Condition need only “limit” a major life activity, meaning simply that it makes achievement of that activity more difficult than for a non-disabled person • Transient or temporary conditions may qualify as disabilities • Ameliorative impacts of mitigating or corrective measures are ignored • Major life activity of “working” includes a particular job, in addition to a broad range of jobs as under ADA • FEHA requires reasonable accommodation of those simply “regarded as” disabled, in contrast to ADAAA. Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34, 60 (2006). • FEHA incorporates ADA protections to the extent they are broader than the FEHA.

FMLA Final Regulations (Non-Military) • Final rules take effect on January 16, 2009. • Despite over six years of consideration, final rules do not make fundamental changes to chief areas of employer concern: • Raising the bar for Serious Health Conditions • Reining in abuses of unscheduled, unforeseeable intermittent leave • Rules make important changes to day-to-day FMLA administration.

Significant Changes inFinal Rules • Serious Health Condition • For absence plus treatment, second visit must be within 30 days of onset of incapacity • For chronic conditions, must see healthcare provider twice per year • Eligibility • Employment beyond 7 year gap does not count toward 12-month requirement • Discretionary leave prior to eligibility does not count toward 12-week FMLA entitlement • Holidays – Paid holidays count toward 12-week FMLA entitlement if leave is one week or more. They do not count for shorter leaves.

Significant Changes inFinal Rules • Employer Notice – General • New poster issued • New general notice of rights – place in handbook • Employer Notice – Specific request for leave • Eligibility and Rights and Responsibility Notice – 5 business days of request • Designation notice – 5 business days of determination of qualifying reason for leave • Fitness to return to work certifications may require list of essential job functions • Ragsdale still good law

Significant Changes inFinal Rules • Employee Notice – Can require use of regular call-inprocedures for intermittent leave • Medical Certification: • Two new, expanded DOL medical certification forms • Seven days to correct incomplete forms • HR can directly contact provider if information provide is unclear • Bonuses – Employers may proportionately deduct from most bonuses for time away from work • Releases and Waivers – Taylor v. Progress Energy reversed. No DOL or court approval is required for releases of past FMLA violations

What Employers ShouldDo Now • Rewrite and publish FMLA policy, procedures, forms and posters. • Train HR staff regarding new forms and new procedures.

FMLA Leave forActive-Duty Military Servicemembers • Two new types of FMLA leave • Care for family member injured in performance of active military duties. • For a “qualifying exigency” related to a family member notified of or on active military duty. • Effective date of new regulations: January 16, 2009.

FMLA Leave forActive-Duty Military Servicemembers Caregiver leave • Employee must be spouse, parent, child, or “next of kin” of covered servicemember with a serious injury or illness related to active duty. • “Next of kin” is a blood relative who is in the first of these categories to exist: a blood relative granted legal custody, siblings, grandparents, aunts/uncles, and first cousins. • Usually, all persons in the relevant “next of kin” relationship are entitled to leave to care for a covered servicemember. • If a specific person is designated by the covered servicemember as “next of kin,” that is the only person who qualifies for leave.

FMLA Leave forActive-Duty Military Servicemembers Caregiver leave • Serious injury or illness suffered during active duty. • Must have been incurred in the line of duty while on active duty. • Servicemember must be undergoing medical treatment, recuperation or therapy, including outpatient status. • Servicemember must be a current member of the Armed Forces or a member of temporary disability retired list. • Does not apply to former members of Armed Forces or to members of permanent disability retired list.

FMLA Leave forActive-Duty Military Servicemembers Caregiver leave • 26 weeks total in 12 months • 12 months begins on first day of this FMLA leave, regardless of how the employer usually determines the relevant 12 months • Does not count against the 12 weeks for other FMLA leave. For example, the employee could take 10 weeks of service member care leave, and then take 12 weeks for the birth of a child. • Total of 26 weeks leave in 12 months, even combined (e.g., if the employee takes 20 weeks of servicemember care leave, the employee may take only six weeks of other FMLA leave.

FMLA Leave forActive-Duty Military Servicemembers Caregiver leave • 26 weeks total in 12 months (cont’d.) • Per covered servicemember, per covered injury or illness (but still subject to the 26 weeks total in 12 months limitation) • Leave that could be designated as either care for a covered servicemember or for a family member with a serious health condition must be designated as leave for the care of a covered servicemember. • Can be intermittent or on a reduced leave schedule

FMLA Leave forActive-Duty Military Servicemembers Exigency leave related to call to active duty • Basic FMLA 12 weeks’ leave in 12 months, using the employer’s normal method for determining “12 months.” • May be intermittent or on reduced leave schedule. • Applies only to relatives of members of the National Guard or Reserves, and certain retired members of the military. Does not apply to relatives of active members of the regular armed services. • “Call to active duty” refers to a federal call to active duty, not a call by the state unless done under order of the President.

FMLA Leave forActive-Duty Military Servicemembers Exigency leave related to call to active duty • Qualifying “exigencies” • Short-notice deployment. • Deployment of seven or few days. • To address any issue arising from the notice of deployment. • Military events and related activities. • To attend events or informational meetings sponsored by the military or the American Red Cross related to the deployment.

FMLA Leave forActive-Duty Military Servicemembers Exigency leave related to call to active duty • Qualifying “exigencies” (cont’d.) • Urgent childcare and school activities. • Financial and legal arrangements. • Counseling. • Rest and recuperation. • Up to 5 calendar days each time the servicemember is on short-term, temporary, or rest and recuperation leave.

FMLA Leave forActive-Duty Military Servicemembers Exigency leave related to call to active duty • Qualifying “exigencies” (cont’d.) • Post-deployment activities: • Events scheduled by the military within 90 days following termination of active duty status. • To address issues related to the death of a service member while on active duty, such as funeral arrangements. • “Additional activities.”

Impact of New FMLA Rules and Provisions in California Workplaces • California Family Rights Act (CFRA) and regulations have not been amended. • CFRA nearly identical to original FMLA. • Exceptions include: 4-mo. pregnancy disability leave an additional entitlement, limitation on medical information, domestic partners covered family members. • New FMLA Military Family Leave Provisions. • Military caregiver leave will count against 12-week CFRA entitlement only if condition also qualifies as serious health condition. • Military exigency leave does not count against 12-week CFRA entitlement. • California has 10-day military spouse leave when servicemember is on home leave from deployment (California Military & Veterans Code sec. 395.10), which runs concurrently with military exigency leave taken for that purpose.

INTRODUCTION Mary Ellen Simonson Lewis and Roca, LLP