The Emerging Pitfalls of the ADAAA with a Focus on Expanded Leave Requirements

Transcription

1 The Emerging Pitfalls of the ADAAA with a Focus on Expanded Leave Requirements Presented By: Jon M. Gumbel Ogletree Deakins Nash Smoak & Stewart, PC March 14, 2012

2 Overview of the Americans with Disabilities Act Passed in 1990, and amended effective January 1, 2009, the ADA: Prohibits employers from discriminating against qualified individuals with disabilities in regard to any employment practices, terms, conditions, and privileges of employment. Requires employers to make a reasonable accommodation to the known physical or mental limitations of qualified applicants and employees, unless providing such accommodation would impose an undue hardship on the employer.

3 Final EEOC Regulations and Revised Interpretive Guidance Issued on March 25, 2011 The primary purpose of the revisions is to make it easier for an individual seeking protection under the ADA to establish that he/she has a disability within the meaning of the ADA.

4 EEOC Fact Sheet In enacting the ADAAA, Congress made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. The EEOC regulations implement the ADAAA -- in particular, Congress s mandate that the definition of disability be construed broadly.

5 What ADAAA Really Means Assume Disability And Attempt to Accommodate

6 Disability Defined The term disability means a physical or mental impairment that substantially limits one or more of the major life activities of the individual; a record of such an impairment; or Being regarded as having such an impairment.

7 Major Life Activities Caring for oneself Performing manual tasks Seeing Hearing Eating* Sleeping* Walking Standing* Sitting* Reaching* Lifting* Bending* Speaking Breathing Learning Reading* Concentrating* Thinking* Communicating* Interacting with others* Working* (* = new)

8 Major Bodily Functions = Major Life Activities Major Bodily Functions include: Functions of the immune system Normal cell growth Digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions

9 Major Bodily Functions = Major Life Activities Hemic System Lymphatic System Musculoskeletal System Special Sense Organs and Skin Genitourinary System Cardiovascular System

10 So What Does it Mean to be Substantially Limited in a Major Life Activity?

11 Tip # 1: Per Se Disabilities Missing limbs Autism Cancer Cerebral palsy Diabetes Epilepsy HIV or AIDS Multiple sclerosis Deafness Blindness Intellectual disability Bipolar disability Post-traumatic stress disorder Obsessive compulsive disorder Schizophrenia Muscular dystrophy Major depressive disorder Mobility impairments

12 Tip # 2: Not Disabilities Pregnancy (but some conditions developed during pregnancy can be e.g. gestational diabetes) Illegal drug use (but recovering addicts can be)

13 Tip # 3: Minor and Transitory can be Disabilities Minor = Definition unclear, except the following are not disabilities: Cold Flu Minor / non-chronic gastrointestinal disorders Sprains / breaks that will heal completely Appendicitis Non-debilitating seasonal allergies Transitory = Less than six months now covered

14 Tip # 4: Episodic / In Remission Can be Disability If disability when active still disability if episodic or in remission Hypertension Epilepsy Multiple sclerosis Asthma Cancer Psychiatric disabilities

15 Tip # 5: Do Not Consider Mitigating Measures But: Non-use of mitigating measures may be relevant in determining whether an individual is qualified or poses a direct threat

16 Tip # 5 - Mitigating Measures (cont d) Employee with diabetes operates heavy machinery, but controls her diabetes with insulin injections. Whether the employee is disabled is determined without regard to insulin injections. But the employee s use or nonuse of insulin injections to control her diabetes may be considered in determining whether she can perform the job s essential functions and whether she poses a threat to herself and others.

17 Tip # 6: Consult Physician When Disability / Need for Accommodation not Obvious Involve their physician Involve ours only when theirs provide insufficient information after giving opportunity to correct If employee refuses, they have thwarted the interactive process obligation ceases (document thoroughly)

18 Summary Is the Impairment Covered? Disability = substantially limited in major life activity Questions to ask to determine if covered Impairment affects Major Life Activity Per Se Disability Per Se Not a Disability

19 Summary Does HR 150 Apply? Minor? Likely not a disability if cold, flu, broken bone, belly ache Transitory? Can be disability Episodic / In Remission? Still a disability if disability when active Mitigating measures? Goes to qualified and direct threat only

20 So the Employee is Disabled Now What?

21 Interactive Process Key Questions: What are the essential functions of their job? Do they need an accommodation to perform the essential functions? What accommodation is needed? Is that accommodation reasonable? Do they pose a direct threat a substantial likelihood of significant harm to self or others?

22 Question # 1: What are essential functions? Distinguish between essential and marginal functions Review the employee s current job description and any available physical job analysis Talk to employee s manager to make sure description up to date and accurately represents day-to-day activities and primary responsibilities

23 Question # 2: Do They Need Accommodation? Are essential or marginal functions affected? Review M.D. note / documentation Discuss with employee (document) Get clarification from M.D. if necessary If refuse M.D. involvement, obligation ceases (document thoroughly)

24 Question # 3: What Accommodation Is Needed? Review M.D. note/documentation Discuss with employee (document) Get clarification from M.D. if necessary If refuse M.D. involvement, obligation ceases (document thoroughly)

25 Question # 3 (cont d) If disability only affects marginal functions must accommodate Eliminate job duty Accommodate so can perform

26 Question # 3 (cont d) List of Potential Accommodations Making facilities accessible and useable Job restructuring Part-time or modified work schedules Reassignment to vacant positions (must be most qualified candidate but this could change)

27 Question # 4: Is the Accommodation Reasonable? Not Reasonable: Removing essential function of job Creating new position if none vacant Making transitional duty position permanent Transfer to position for which not qualified Bumping incumbent

28 Question # 4: Is the Accommodation Reasonable? Not Reasonable: Waiving prior discipline Lowering quality and/or quantity standards Providing personal use items such as eye glasses or hearing aids Preferred accommodation if cheaper, less disruptive accommodation available Undue hardship accommodation poses significant difficulties or expense

29 Question # 5: Does Employee Pose Direct Threat to Self or Others? Significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation Example: Refuses/forgets to take medication

30 Summary Accommodation Identify essential/marginal functions Determine if accommodation needed to perform essential functions

31 Leave as an Accommodation

32 Leave as an Accommodation Leave not listed as potential accommodation in regulations but recognized and expected by EEOC EEOC developing new guidance for leave as accommodation

33 Leave as an Accommodation In interim, adhere to the following best practices: Right to leave as accommodation attaches upon employment, not after 1 year like FMLA Leave can be short term, long term or intermittent Leave should not be bounded by bright line rules e.g., one year and out If FMLA leave expires and employee cannot return to work, should affirmatively inquire if additional leave needed as an accommodation (more detailed discussion below) Leave is accommodation of last resort attempt to keep at work Undue hardship analysis critical

34 Leave as an Accommodation Examples of Reasons to Consider Leave as Accommodation Obtain treatment, physical therapy Recuperate from illness or episodic manifestation of illness Obtain / repair on assistive device, e.g., wheelchair, prosthesis Avoid temporary adverse work conditions (e.g., air conditioning breakdown) Training service animal Training for Braille, sign language

35 Leave as an Accommodation Intersection of ADA and FMLA When considering additional leave as accommodation may consider 12 weeks already gone under FMLA in undue hardship analysis ADA/FMLA run concurrently although can restore to equivalent position under FMLA, must restore to same position under ADA

36 Termination for Excessive Absenteeism Employee is ineligible for FMLA Employee is eligible for FMLA and has exhausted all FMLA leave

37 Employee is Ineligible for FMLA Has employee exhausted all other forms of absenteeism/leave under Company: Policy? Practice? Consider additional leave beyond policy in support of accommodation Consider all evidence of expected return to work date

38 Employee Has Exhausted FMLA Leave Leave beyond 12 weeks as accommodation Law in this jurisdiction is evolving Consider risk of being test case Current Law Employee must be able to return to duties at end of 12 weeks or in the immediate future thereafter Immediate future defined?

39 Maternity Leave as an Accommodation Is pregnant employee disabled? Does employer have current maternity leave policy? Is accommodation required? EEOC position The Courts

40 Questions?