Transcript First Friday Webinar June 5, 2009

ADA Amendments Act of 2008
and Overview of
ADA Reasonable Accommodations
Requirements
June 5, 2009
CORT First Friday Webinar
Michael R. Smalz
Senior Statewide Attorney
Jane P. Perry
Staff Attorney
Ohio State Legal Services Assn.
555 Buttles Avenue
Columbus, OH 43215-1137
PH: 614-221-7201
FX: 614-221-7625
Ohio Legal Rights Service
50 West Broad Street, Suite 1400
Columbus, OH 43215-5923
PH: 614-466-7264
FX: 614-644-1888
History and Legal Authority
•
ADA Amendments Act of 2008, Pub.L. 110-325, 122 Stat. 3555 et seq.
•
Signed by President Bush on September 25, 2008.
•
Effective on January 1, 2009. Probably not retroactive, but see unpublished
opinion in Jenkins v. National Board of Medical Examiners, 6th Cir., No. 085371, 2/11/09 ("no injustice would result from applying the amended law" to
pre-January 1, 2009 reasonable accommodation request).
•
Primarily amends 40 U.S.C.A. §12101 (findings and purpose); 42 U.S.C.A.
§12102 (definitions); 42 U.S.C.A. §12113 (defenses); 42 U.S.C.A. §12201
(construction); and 42 U.S.C.A. §12205a (rule of construction regarding
regulatory authority).
•
Non-codified findings and purposes enumerated in Section 2 of the ADAAA.
•
Changes the scope of the definition of disability in Title I (employment), Title
II (public accommodations), and Title III (government programs or services)
discrimination cases.
2
Key Findings In ADAAA, Section 2
(Non-codified)
•
In enacting the Americans With Disabilities Act of 1990 (ADA), Congress
intended that the Act "provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities" and
provide broad coverage;
•
In enacting the ADA, Congress recognized that physical and mental
disabilities in no way diminish a person's right to fully participate in all
aspects of society, but that people with physical or mental disabilities are
frequently precluded from doing so because of prejudice, antiquated
attitudes, or the failure to remove societal and institutional barriers;
•
While Congress expected that the definition of disability under the ADA
would be interpreted consistently with how courts had applauded the
definition of a handicapped individual under the Rehabilitation Act of 1973,
that expectation has not been fulfilled;
3
Key Findings (continued)
• The holdings of the Supreme Court in Sutton v. United Airlines, Inc.,
527 U.S. 471 (1999) and its companion cases have narrowed the
broad scope of protection intended to be afforded by the ADA, thus
eliminating protection for many individuals whom Congress intended
to protect;
• The holding of the Supreme Court in Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) further narrowed the
broad scope of protection intended to be afforded by the ADA;
• As a result of these Supreme Court cases, lower courts have
incorrectly found in individual cases that people with a range of
substantially limiting impairments are not people with disabilities;
• In particular, the Supreme Court, in the case of Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams 534 U.S. 184 (2002),
interpreted the term "substantially limits" to require a greater degree
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of limitation then was intended by Congress; and
Key Findings (cont.)
• Congress finds that the current Equal Employment Opportunity
Commission ADA regulations defining the term "substantially limits"
as "significantly restricted" are inconsistent with congressional
intent, by expressing too high a standard.
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Purposes
(ADAA, Section 2, Non-Codified)
•
To carry out the ADA's objectives of providing "a clear and comprehensive
national mandate for the elimination of discrimination" and "clear, strong,
consistent, and enforceable standards addressing discrimination" by
reinstating a broad scope of protection to be available under the ADA;
•
To reject the requirement enunciated by the Supreme Court in Sutton v.
United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that
whether an impairment substantially limits a major life activity is to be
determined with reference to the ameliorative effects of mitigating
measures;
•
To reject the Supreme Court's reasoning in Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999) with regard to coverage under the third prong of the
definition of disability and to reinstate the reasoning of the Supreme Court in
School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set
forth a broad view of the third prong of the definition of handicap under the
Rehabilitation Act of 1973;
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Purposes (continued)
•
To reject the standards enunciated by the Supreme Court in Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), 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 "and individual must have an impairment that
prevents or severely restricts the individual from doing activities that are of
essential importance to most people's daily lives;
•
To convey congressional intent that the standard created by the Supreme
Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
534 U.S. 184 (2002) for "substantially limits", and applied by lower courts in
numerous decisions, has created an inappropriately high level of limitation
necessary to obtain coverage under the ADA, to convey that it is the intent
of Congress that the primary object of attention in cases brought under the
ADA should be whether entities covered under the ADA have complied with
their obligations, and to convey that the question of whether an individual's
impairment is a disability under the ADA should not demand extensive
analysis;
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Purposes (cont.)
• To express Congress' expectation that the Equal Employment
Opportunity Commission will revise that portion of its current
regulations that defines the term "substantially limits" as
"significantly restricted" to be consistent with this Act, including the
amendments made by this Act.
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Definition of Disability
(1)
DISABILITY– The term "disability" means, with respect to an
individual —
(A) a physical or mental impairment that substantially limits one or
more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in
paragraph (3)).
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Definition of Disability (cont.)
This general definition of disability is essentially unchanged from the
ADA of 1990, except for the third prong. However, the U.S. Supreme
Court had narrowly construed this definition in a way that led the courts
to exclude a wide range of individuals from coverage, including many
individuals with diabetes, epilepsy, cancer, muscular dystrophy, and
artificial limbs.
10
Definition of Disability (cont.)
As Professor Ruth Colker of the OSU Moritz College of Law observed,
The scope of the reasonable accommodation obligation has been
narrowed far beyond the statutory language, and the categories of
people who can bring claims under the statute has been confined
beyond the intentions of Congress or the EEOC. Moreover,
conservative newspapers have fueled this backlash by exaggerating
the scope of success for claimants under the ADA.
─Ruth Colker, American Law in the Age of Hypercapitalism:
The Worker, the Family and the State, 98 (1998).
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Mitigating Measures
•
In Sutton v. United Air Lines, the Supreme Court narrowed the group of
people covered by the ADA by ruling that mitigating measures, such as
medication, equipment, devices, or assistive technology, must be taken in
account in determining whether a person was substantially limited in a
major life activity. Thus, if medication or devices enable the person with an
impairment to function well, that person was held by the courts not to have a
disability under the ADA–even if the impairment was the basis for the
discrimination.
•
The ADAAA provides that the ameliorative effects of mitigating measures
shall not be considered in determining whether an individual has an
impairment that substantially limits a major life activity. 42 U.S.C.A.
§12102(4)(E)(i).
•
An exception is made for "ordinary eyeglasses or contact lenses," which
may be taken into account. 42 U.S.C.A. §12102(4)(E)(ii). Therefore, a
person with a visual impairment that is corrected by eyeglasses or contact
lenses does not have a visual impairment that limits a major life activity.
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Mitigating Measures (continued)
• Notwithstanding the above provision, a covered entity may not use
qualification standards, employment tests or other selection criteria
based on an individual's uncorrected vision unless the standard,
test, or other selection criteria if shown to be job-related and
consistent with business necessity. 42 U.S.C.A. §12112.
13
The "Major Life Activity" Requirements
•
In Williams, the Supreme Court ruled that a "major life activity" must be an
activity that is of "central importance to most people's daily lives." 534 U.S.
184, 197.
•
The ADAAA includes a non-exhaustive list of major life activities: caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working. 42 U.S.C.A.
§12102(2)(A).
•
Major life activities also include the operation of major bodily functions, such
as the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and reproductive
functions. 42 U.S.C.A. §12102(2)(B).
•
An impairment that substantially limits a major life activity need not limit
other major life activities in order to be considered a disability (contrary to
some court decisions under the former ADA). 42 U.S.C.A. §12102(4)(C).
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Episodic Conditions or
Conditions in Remission
• Some courts have held that episodic or intermittent requirements,
such as epilepsy or PTSD, were not covered under the ADA.
• The ADAAA clarifies that impairments which are episodic or in
remission are considered disabilities if the impairment would
substantially limit a major life activity when the condition is
considered in its active state. 42 U.S.C.A. §12102(4)(D).
• Query: what about conditions that may be in remission for a long
time, e.g., cancer or a seizure disorder with very infrequent
seizures?
15
Regarded as Having a Disability
• Third prong of the definition of disability in the ADA/ADAAA.
• In Sutton, the Supreme Court set a very high standard of proof—
essentially requiring the individual to prove that the covered entity
that engaged in the discrimination also believed that many other
employers would have discriminated against that individual as well.
Lower courts had also required individuals to show what was in a
covered entity's head in order to establish coverage under the
"regarded as" prong.
• New liberal test under the ADAAA—An individual can establish
coverage under the "regarded as" prong by showing that he or she
was subject to a prohibited action (discrimination) based on an
actual or perceived impairment, regardless of whether the
impairment limits or is perceived to limit a major life activity. 42
U.S.C.A. §12102(3)(A).
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Regarded as Having a Disability (cont.)
• Reinstates the approach of the U.S. Supreme Court in the
Rehabilitation Act of 1973 case of School Board of Nassau County v.
Arline 480 U.S. 273 (1987); one can look to Rehabilitation Act
cases defining "handicap" in interpreting this amendment to the
ADA.
• Therefore, anyone with a perceived significant physical or mental
impairment is likely to be protected against affirmative acts of
discrimination by a covered entity under the ADAAA. (See below for
different treatment of "reasonable accommodation" claims.)
• Transitory and minor impairments are excluded from coverage
under the "regarded as" prong. 42 U.S.C.A. §12102(3)(B).
• A transitory impairment is an impairment with an actual or expected
duration of six months or less. 42 U.S.C.A. §12102(3)(B).
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Reasonable Accommodations and
Modifications
• No reasonable accommodation or reasonable modification of the
covered entity's policies, practices, or procedures is required in
"regarded as" disability cases. 42 U.S.C.A. §12201(h).
• No change is made to the ADA's "fundamental alteration" defense–
Reasonable modifications in policies, practices, or procedures shall
be required, unless an entity can demonstrate that making such
modifications would "fundamentally alter" the nature of the goods,
services, facilities, privileges, advantages, or accommodations
involved. 42 U.S.C.A. §12201(f).
18
Regulatory Authority
•
In Sutton, the Supreme Court held that "no agency has been delegated
authority to interpret the term 'disability'" through regulations. 527 U.S. at
479.
•
The ADAAA grants the EEOC, the Attorney General, and the Secretary of
General Transportation authority to issue regulations interpreting the
definition of disability under the ADA. 42 U.S.C.A. §12205a.
•
The Bush Administration's proposed regulations were withdrawn from OMB
review on January 21, 2009, after the four EEOC commissioners
deadlocked on approving set of proposed rules.
•
April 4, 2009 Statement of EEOC Acting Vice Chair—Staff draft notice of
proposed rulemaking "will be finished sometime soon," but there is no "real
clear time frame" for completing entire rulemaking process.
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Miscellaneous Provisions
• Nothing in the ADAAA alters the standards for determining eligibility
under State worker's compensation laws or under State and Federal
disability benefit programs. 42 U.S.C.A. §12201(e). The ADAAA
changes should have no bearing on eligibility determinations for
Social Security, SSI, or Veterans' disability benefits.
• Nothing in the ADAAA shall provide the basis for a claim by an
individual without a disability that the individual was subject to
discrimination because of the individual's lack of disability. 42
U.S.C.A. §12201(g). Therefore, an employer or other covered entity
may discriminate in favor of disabled persons without violating the
ADA.
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Impact on Other Disability
Discrimination Laws
• The Rehabilitation Act of 1973 is amended to give the definitions of
"disability" and "individual with a disability" in the Rehabilitation Act
the same meaning as in the ADAAA. 29 U.S.C.A. §705(9)(B) and
705(20)(B).
• There are no changes to the Fair Housing Act, but there may be a
spillover effect. Remember that the ADA covers rental offices and
other business offices of landlords and realtors.
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Overview of Reasonable
Accommodations
Title I, ADA 42 U.S.C. §12101 et seq.; 29 C.F.R. 1630.1 et seq.
• Requires employers to provide reasonable accommodations to
applicants and employees with disabilities.
Accommodations may be needed in:
• The application process
• Work environment
• Employee benefits
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Definition of
"Reasonable" Accommodation
• One that does not cause "undue hardship," that is, significant
difficulty or expense for the employer, considering the number of
other employees, the employer's overall financial resources, and the
impact on company operations.
• One that does not involve relieving the employee of one of the
essential functions of his/her position.
• One that is effective in meeting the person's need(s).
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Applicants or Employees Must
Request a Reasonable
Accommodation
Unless the Need is Obvious
• No magic words are needed, ie, individual does not have to say "I
am requesting a reasonable accommodation for my disability."
• Request does not have to be in writing, but it is best to document.
• "I need time off because I'm depressed and stressed" – on notice of
request for accommodation.
• "I need my schedule adjusted because of my medications."
• A family member, friend or doctor can also make a request for
accommodation on the person's behalf.
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Employees: The "Interactive Process"
• Once an accommodation is requested, the employer and employee
must engage in an interactive process.
• Discuss what the person needs, identify potential accommodations.
• The employer can ask for documentation of the disability but not the
person's entire medical history – requested documents must be
related to the disabling condition.
• Can ask employee to sign a limited release of medical information
so that employer can contact employee's doctor with questions
about the condition and the need for accommodations.
• Can ask an employee to go to a health care professional of the
employer's choice if the employee's information is not sufficient in
the company's view, but the employer should pay.
• Employer should respond promptly - accommodation delayed is
accommodation denied.
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General Examples of
Reasonable Accommodations
•
Making buildings and facilities accessible to applicants and employees includes employee benefits such as cafeterias, lounges, gyms.
•
Making applications as well as needed workplace information and training
programs accessible.
•
Modifying equipment or work spaces - adaptive equipment.
•
Modifying work schedules.
•
Modifying work place policies.
•
If there is more than one possible accommodation, the employer can
choose the less expensive one -- as long as it is effective.
•
An employee is not required to accept an accommodation that he or she
does not want -- BUT -- refusing a reasonable accommodation may make
the employee not qualified to remain on the job.
•
Requesting a change in supervisor is not usually a "reasonable"
accommodation.
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Job Restructuring as a
Reasonable Accommodation
• Restructuring (reallocating or eliminating) "marginal" job functions is
reasonable; restructuring "essential" job functions is not.
• Employer position statements or job descriptions often identify the
"essential" functions of the job.
• The employer's designation of "essential" functions is not always
definitive.
• The day to day practice in the work place and the ways in which
employees allocate job functions among themselves may differ from
the employer's position statement.
• It may be possible to restructure some job functions for an employee
with a disability based on the way the functions are actually
performed in the workplace as opposed to the employer's position
statement.
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Reassignment to Vacant Position as
a Reasonable Accommodation
• There must be an open position.
• The employer should help the employee identify an open position or
positions.
• The job must be equivalent in pay, benefits and status to former job.
• If there is no equivalent job open, the employer should transfer the
employee to a position that is closest to the employee's current
position in pay, benefits, etc.
• The employee must meet the qualifications for the position.
• The reassignment cannot violate seniority rules.
28
Excess Leave as a
Reasonable Accommodation
•
It may be reasonable for an employer to allow additional leave for an
employee with a disability when allowed leave has been exhausted, if:
•
The amount of excess leave requested is not unreasonable given the
number of employees available who could "cover."
•
The employee or employee's doctor can say that the employee will be able
to return to work within a certain period of time.
•
"No fault" absence policies generally violate the ADA because they do not
account for reasonable accommodations.
•
FMLA/ADA: It may sometimes be reasonable for an employer to allow an
employee with a disability to take leave in addition to the 12 weeks of
allowed FMLA leave.
•
It is not reasonable to expect an employer to hold a job open indefinitely.
29
Discipline and Performance Issues
• An employer can discipline an employee with a disability for violating
workplace conduct standards so long as the standards are job
related and applied equally to all employees.
• An employer can discipline an employee with a disability for poor
performance if the employer is unaware of the disability and the
employee has not requested reasonable accommodations.
• If an employee with a disability requests accommodations after a
poor performance review, the employer should then provide
accommodations but does not have to rescind the poor performance
review.
30
Disseminating Disability-Related
Information in the Workplace
is Prohibited under ADA
• Must be kept confidential, in a separate file.
• Can be shared only those who have a need to know.
• Co-workers should not be told that an employee is getting an
accommodation.
• If asked, managers should say that they do not discuss one
employee's situation with others in order to protect the privacy of all
employees, but assure co-workers that the employee in question is
meeting all work requirements.
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Resources
• OLRS - olrs.ohio.gov
• EEOC - www.eeoc.gov - excellent website, lots of
publications:
• Job Accommodation Network, JAN:
http://janweb.icdi.wvu.edu/
• ADA Ohio: http://www.ada-ohio.org/
• ADA Home Page - ada.gov
• DisabilityInfo.gov
P:/9-Trainings/2009/CORT First Fridays/ADA June09.ppt
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