ACCOMMODATING THE ADAAA

Transcription

1 ACCOMMODATING THE ADAAA By Drew J. Gentsch and Luke Craven 317 Sixth Avenue, Suite 1200 Des Moines, IA Telephone Special Thanks to Kimberly Bartosh and J. Campbell Helton, members at Whitfield & Eddy, PLC, for their assistance with this presentation. NOTE: This material is designed and intended for general informational purposes only and is not intended, nor should it be construed as or relied upon as legal advice. Please consult your attorney if specific legal advice is desired. 1

2 I. Introduction to the Americans with Disabilities Act Amendments Act of 2008 a. Enacted on September 25, 2008 b. Became effective on January 1, 2009 c. Made a number of significant changes to the definition of disability d. Overturned several court decisions e. Overturned several Equal Employment Opportunity Commission ( EEOC ) regulations f. It s purpose is to reinstate a broad scope of protection by expanding the definition of the term disability II. What are the changes a. Congress reacted to what it viewed as a narrow interpretation of the ADA by the Courts and the EEOC b. Specifically, Congress wanted to target EEOC regulations, and the court decisions relying on those regulations, that limited coverage to individuals with severe disabilities. c. Congress found that many individuals suffering from different types of impairments (i.e. epilepsy, diabetes, multiple sclerosis, intellectual disabilities, major depression, and bipolar disorder, etc.) were unable to bring claims under the ADA because they were found not to meet the ADA s definition of disability d. The ADAAA now defines disability as follows: i. A physical or mental impairment that substantially limits a major life activity; or ii. A record of a physical or mental impairment that substantially limited a major life activity; or iii. When an entity (e.g., an employer) takes an action prohibited by the ADA based on an actual or perceived impairment. 42 USC 12102(1); see also 29 C.F.R (g)(1). e. In order for a person s impairment to be deemed substantially limiting they must be substantially limited in performing a major life activity as compared to most people in the general population i. Prior to the enactment of the ADAAA, the EEOC listed a series of tests to determine whether a person was substantially limited ii. Congress believed that the tests were too demanding and, therefore, adopted the more common sense comparison approach f. Major life activities are basic activities that most people in the general population can perform with little or no difficulty, and include, but are not limited to the following: i. caring for oneself; ii. performing manual tasks; 2

3 III. iii. seeing; iv. hearing; v. eating; vi. sleeping; vii. walking; viii. standing; ix. lifting; x. bending; xi. speaking; xii. breathing; xiii. learning; xiv. reading; xv. concentrating; xvi. thinking; xvii. communicating; and xviii. working. Impairments that will consistently meet the definition of disability a. The EEOC has established that some impairments will consistently meet the definition of disability b. Based on the following ADAAA directives: i. the term disability shall be construed broadly; ii. the ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses) shall be disregarded iii. Impairments that are episodic or in remission are disabilities if they would be substantially limiting when active c. The impairments include the following: i. deafness; ii. blindness; iii. intellectual disability; iv. partially or completely missing limbs; v. mobility impairments requiring use of a wheelchair; vi. autism; vii. cancer; viii. cerebral palsy, diabetes, epilepsy; ix. HIV/AIDS; x. multiple sclerosis; xi. muscular dystrophy; xii. major depression; xiii. bipolar disorder; xiv. post-traumatic stress disorder; 3

4 xv. obsessive-compulsive disorder; and xvi. schizophrenia IV. The ADAAA s impact on employers a. The ADA is much more liberally construed b. The focus has shifted i. less determining whether an individual s impairment qualifies as a disability ii. more determining how to comply with the law (i.e, determining if a reasonable accommodation is required or whether discrimination occurred) c. EEOC regulations also make it easier for a person to establish coverage under the regarded as portion of the of the definition of disability i. Determination will be based on how a person is treated because of a physical or mental impairment, as opposed to what the employer may have believed about the nature of the person s impairment ii. An individual who is regarded as is not entitled to reasonable accommodation, but the individual who is regarded as disabled is protected from discriminatory acts based on the person s physical or mental impairment. V. The employee s burden of proof a. Iowa courts follow federal precedent. b. If the plaintiff/employee is unable to show direct evidence of discrimination, then the Court applies the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973). See Adams v. Zucker Enterprises, Inc., 705 N.W.2d 105 (Iowa App. 2005). i. A plaintiff is first required to establish a prima facie case of discrimination. See Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1021 (8th Cir. 1998) (citation omitted). ii. If the plaintiff satisfies the initial burden of establishing a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. iii. If the employer advances such a nondiscriminatory reason, the presumption disappears and the plaintiff bears the burden of demonstrating that the employer's proffered reason is merely a pretext for intentional discrimination. iv. The employee can prove the employer's articulated justification is merely pretextual either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer s proffered explanation is unworthy of credence. Fitzgerald v. Action, Inc., 521 F.3d 867, 872 (8th Cir. Ark. 2008). 4

5 VI. VII. c. While the burden to prove specific elements may shift, the burden of proving intentional discrimination remains with the plaintiff/employee at all times. Preparing and defending the employer a. Keep and maintain employment records i. Personnel records ii. Salary information iii. Performance evaluations iv. Proper accounting for FMLA, PTO, vacation v. Note and process any and all requests for restrictions or special accommodations related to disabilities or injuries b. Review Employer handbook i. Make sure it is up to date with existing law ii. Ensure that it provides necessary subject matter (i.e. anti-discrimination policy) iii. If it includes a complaint procedure, make sure that management is aware of the procedure and it is closely followed iv. Ensure that all incoming employees are provided a copy, and address any questions the employees have v. If the handbook is revised, provide a revised copy to current employees c. Job descriptions i. Ensure that all job descriptions are kept current ii. Have HR, safety, and legal review the job description prior to publication iii. Counsel incoming employees on the requirements of the job, and memorialize the counseling in writing d. Rebutting pretext i. If it is a legitimate business reason (downsizing workforce), make note of it in the employment file ii. Give proper notice to the employee iii. Ensure that treatment of employees is consistent General rules of accommodation a. Discrimination is defined to include not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability. 42 USC 12112(b)(5)(a). b. Reasonable accommodations are those accommodations that the employer can implement without imposing an undue hardship on the employer's business. See Heaser v. The Toro Co., 247 F3d 826, 830 (8th Cir. 2001). c. The employer needs to determine if the employee can perform the essential functions of the job with or without reasonable accommodations i. If so, then the employee cannot be discharged due to the disability 5

6 ii. If not, then the accommodation would likely impose an undue hardship on the employer s business. See Duchene v. Empl. Appeals Bd. & Wells Fargo Bank, 2013 Iowa App. LEXIS 325 (Iowa App. 2013) (finding that an accommodation allowing employee to work part-time from home with no restrictions on work absences would not be an accommodation required under the ADA). d. In determining whether a job function is essential, the court must consider evidence including (1) the employer s judgment as to which functions are essential, (2) written job descriptions prepared before advertising or interviewing applicants for the job, (3) the amount of time performing the function, (4) the consequences of not requiring performance of the function, (5) the terms of any collective bargaining agreement, (6) the work experience of past incumbents on the job, and/or (7) the current work experience of incumbents in similar jobs. Kallail v. Alliant Energy Corporate Services, Inc., 691 F.3d 925 (8th Cir. 2012). e. Avoid pitfalls i. If the employer has provided accommodations in the past, don t take those accommodations away, and then remove the person from the position under the auspice that the person is no longer able to perform the essential functions of the job. See Bamrick v. Sam's West, Inc., 2013 U.S. Dist. LEXIS (N.D. Iowa 2013). ii. If the employee has submitted a notice of restrictions or requested accommodations ensure that they are processed as soon as possible, and include the notice in the employment records. cf. Bradley v. Little Rock Wastewater Util., 2013 U.S. App. LEXIS 3076 (8th Cir. 2013). iii. Remember that communication (preferably backed up in writing) with the employee is key. 6