ADA Amendments Act & Proposed Regulations - What Employers Need to Know

© 2009 PULLMAN & COMLEY, LLC

ADA AMENDMENTS ACTAND PROPOSED REGULATIONS:

WHAT EMPLOYERS NEED TO KNOW

Presented by:Daniel A. Schwartz & Margaret M. Sheahan

October 13, 2009


Before We Start

• Powerpoint materials can be downloaded directly from drop.io/danielschwartz.

• This webinar will be available for rebroadcast and download later today from the same site.

• Other materials: www.ctemploymentlawblog.com• Please feel free to submit any questions you might have

and we’ll try to address them in the end.• If you have any issues, please feel free to e-mail me at

[email protected].• If you have a question, submit it through the webinar.

www.ctemploymentlawblog.com


What’s New?

• Court decisions on “disability” perceived as making enforcement too difficult

• Congress “corrected” it through legislation

• EEOC proposed implementing regulations


Timeline

• ADA enacted 1990; amendments passed in September 2008.

• ADAAA Effective date January 1, 2009– Not Retroactive– Only applies to allegations arising after that date

• EEOC proposed regulations on September 23, 2009• Comments due by 11/23/09• Final regulations soon thereafter

– no earlier than Q1 2010


Key Supreme Court and EEOC Positions Overturned

• The ADA Amendments Act of 2008 reverses two US Supreme Court decisions by name:– Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999),

which required mitigating measures to be factored in the determination of whether a plaintiff has a disability.

– Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which called for strict interpretation of the terms “substantially” in the “substantially limits” concept and “major” in the “major life activity” concept.

• The 2008 statute also specifically rejected an EEOCinterpretive regulation that defined “substantially limits” as “significantly restricts.”


What Did NOT Change?

• Still applies to employers with 15 or more employees• Actual definition of “disability”• Duty to provide “reasonable accommodations”• Employer defenses (direct threat, undue hardship)


What are The Key Changes?

• Employers must now adopt a broad standard to determine if someone is “disabled” – something found in the language of the amendments itself.

• Courts are to provide coverage to individuals “to the maximum extent permitted.”

• Focus should be on whether discrimination occurred.– Whether someone is “disabled” should be a fairly

simple, preliminary matter.– Start treating issue as with other “protected classes.”


Changes to Definition of “Major Life Activities”

• Expands the definition of "major life activities" by including two non-exhaustive lists: – the first list includes many activities that the EEOC has

recognized (e.g., walking) as well as activities that EEOChas not specifically recognized (e.g., reading, bending, and communicating)

– the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions")


Changes to “Substantially Limits”

• Directs EEOC to revise that portion of its regulations defining the term “substantially limits”

• Must be interpreted consistent with Congress’s findings and purposes:– Defining it as “significantly restricted” is too high a

standard according to Congress.


Other Rules of Construction Changes

• Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active

• An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability


Changes to “Regarded As” Definition

• Under the amendments, an individual now must show only that the employer perceived the individual as having a mental or physical impairment: – Individual does not need to show that that employer

perceived an impairment that substantially limits a major life activity.

• “Regarded as” individuals NOT entitled to reasonable accommodation


What About Mitigating Measures?

• Previously, courts and employers had to determine a person’s disability taking into account the effects of mitigating measures such as prosthetics, medications or hearing aids.

• Now, employers and courts must ignore those measures in the threshold issue of whether employee has a “disability.”

• However, in reasonable accommodation analysis, these measures can and should be considered.


Big Exception – Glasses

• Congress created an exception for ordinary eyeglasses and contact lenses.

• Those items CAN be considered when determining if someone is disabled.


Proposed Regulations - Summary

Expands the definition of “major life activities” through two non-exhaustive lists:

• The first list includes activities such as 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, and working.


Proposed Regulations – Major Bodily Functions

– The second list includes major bodily functions, such as functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.


Proposed Regulations – Substantially Limits

• In General– As compared to most people in the general population– Need not prevent or significantly or severely restrict


Proposed Regulations – Substantially Limits

Important Changes to Rules of Construction• Effect on activities of central importance to daily life is

NOT required.• Common sense is enough without scientific or medical

evidence.• Focus is on the limitation, not on the ability in spite of

impairment.– New paradigm for looking at these cases


Proposed Regulations – Presumed Disabilities(Non-Exhaustive)

– deafness– blindness– intellectual disability – partially or completely

missing limbs– mobility impairments

requiring the use of a wheelchair

– autism– cancer– cerebral palsy– diabetes

– epilepsy– HIV or AIDS– multiple sclerosis and

muscular dystrophy– major depression– bipolar disorder– post-traumatic stress

disorder– obsessive compulsive

disorder– schizophrenia


Proposed Regulations – May be Disabling(Non-Exhaustive)

• asthma• high blood pressure• learning disability• leg or back impairment• psychiatric impairment• carpal tunnel syndrome• hyperthyroidism


Proposed Regulations – Probably NOT Disabilities

• short duration with little or no residual effects, such as, common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely


Beware of the State Law

• State law definition of “disability” may be even broader than the ADAAA.

• Any chronic condition, without regard to impact, may be covered, for example.

• Each statute provides a floor and whichever is more generous to employee will apply.

• Query whether legislation will be adopted to bring more consistency to issue in Connecticut (compare with CTFMLA/FMLA).


Action Steps For Employers

• Review and update policies for outdated limitations.• Train and educate human resources and front-line

supervisors.• Look for common-sense view on potential disability

scenarios.• Default position is likely to be that individual IS

protected; emphasis on what then. • As always, document rationale and steps considered

and taken to accommodate any difficulties.


Swine Flu & ADA (In Brief)

• Generally, ADA prohibits disability-related inquiry or medical exam unless job-related & consistent with business necessity– Can show likely to be impaired by medical condition– Employee will pose a “direct threat” (check EEOC)– But can ask e’ees if experiencing flu-like symptoms

• Regardless, all information should be kept confidential• Can send e’ees home if display flu-like symptoms• Can implement telework, infection-control• If employee has been absent, can ask why


In Conclusion

• Webinar series continues the second Wednesday of every month – November will be moved because of Veterans Day

• Questions?– Be sure to either “raise hand” or submit question on the

toolbar.– If your question isn’t answered, we will try to followup

in the next 24 hours.


Dan SchwartzPullman & Comley, LLC90 State House SquareHartford, CT 06604

p 860.424.4359 [email protected]

www.ctemploymentlawblog.comhttp://www.linkedin.com/in/ctattorney

http://twitter.com/danielschwartz

BridgeportHartfordStamfordWhite Plains

www.pullcom.com

Margaret SheahanPullman & Comley, LLC

850 Main StreetBridgeport, CT 06601

p [email protected]

www.ctemploymentlawblog.com

www.linkedin.com/in/ctattorney

www.pullcom.com

http://www.linkedin.com/in/ctattorney

http://twitter.com/danielschwartz

ADA Amendments Act & Proposed Regulations - What Employers Need to Know

Documents

pullman comley

major life activity

major bodily functions

date eeoc

persons disability

employers need

eeoc positions

legislation eeoc