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April-May 2011

SFM Up North
A publication from the Duluth offices of SFM Companies
Editor: Kathleen S. Bray, Attorney

THIS MONTH'S TOPICS:

New ADA Amendments Act (ADAAA) regulations effective May 24, 2011

On May 24, 2011, the final regulations implementing the Americans With Disabilities Act Amendments Act (ADAAA) went into effect. On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008, which was effective Jan. 1, 2009. Courts are just starting to issue decisions interpreting the amended Americans with Disabilities Act, and the Equal Employment Opportunity Commission's (EEOC's) recent activity makes clear that enforcing the more liberal intent and scope of the amended Act is high on their priority list. 

While not exhaustive, the following discussion highlights many of the provisions and new regulations applicable to employers managing injured workers:

Disability

The ADA Amendments Act of 2008 reinterprets "disability" by rolling back the recent case law that more narrowly defined disability and limited eligibility for protection under the Act. Congress found that the courts had improperly narrowed the scope of the Act and incorrectly found in many cases that individuals were not qualified individuals with a disability despite having a wide range of substantially limiting impairments. While the definitional language of disability did not change, how that language is interpreted has been greatly expanded. 

Significantly, some impairments will consistently meet the definition of disability, essentially a disability per se: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.  

Substantial limitations

Congress found that the Equal Employment Opportunity Commission's (EEOC) old regulations created too high of a standard of proof for an individual to establish that they were "substantially impaired." An employee will have an easier time establishing that he or she is "substantially limited" by an impairment under the new law. 

The final regulations reinforce the nine "rules of construction" reflected in the underlying Act. Application of these rules reportedly should answer the question whether an impairment substantially limits a major life activity:

  1. "Substantially limits" is to be construed broadly, rather than be a demanding standard;
  2. The substantial limitation must be in comparison to most people in the general population. While an impairment need not prevent or severely restrict a major life activity, not every impairment will satisfy the criteria of substantial limitation.
  3. Determining whether an impairment substantially limits a major life activity should not require an extensive analysis; the primary object of the analysis when a claim is presented is whether discrimination occurred.
  4. While substantial limitation is still an individualized assessment, the bar has been lowered for satisfying this requirement.
  5. Scientific, medical or statistical analysis usually should not be required to determine substantial limitation.
  6. Substantial limitation is determined without taking into account mitigating measures (see further discussion below).
  7. Impairments that are episodic or in remission may meet the requirements of a disability if the impairment substantially limits a major life activity when in its active state (see further discussion below).
  8. Impairments need not limit more than one major life activity. If the impairment substantially limits a major life activity, that is sufficient.
  9. A temporary impairment may be found to substantially limit a major life activity and qualify for coverage under the ADA. (see further discussion below)

Major life activities

The definition of "major life activities" has been expanded, but not exhaustively defined, through lists of major life activities.

The "general" major life activities include 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.

In assessing whether a person is substantially limited in the activity of working, one should consider whether someone is substantially limited in performing a "class or broad range of jobs" as opposed to "type of work." "Class of jobs" may be determined by the nature of the work (e.g. commercial truck driving, assembly line jobs) or by looking at job-related requirements like duties of repetitive bending, reaching or frequent lifting. If an employee is only substantially limited in performing the duties of a particular, unique job, it is unlikely the EEOC would find her substantially limited in the major life activity of working.

The regulations also include a list of "major bodily functions" that qualify as major life activities:  functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions.

Mitigating measures

Determining whether a major life activity is substantially limited is not determined by taking into account the improvement or assistance obtained through mitigating measures. Ordinary eyeglasses or contact lenses are the only mitigating measures that may be considered in determining whether a person is substantially limited. An employer may not factor in items such as medication, prosthetics, mobility devices, assistive technology, reasonable accommodations, behavioral therapy, physical therapy and psychotherapy in evaluating a potential disability. Instead, determination of whether the employee is substantially limited under the ADA turns on whether the impairment substantially limits a major life activity without the mitigating measure. For example, if an employee suffered no impairment while medicated for epilepsy, but suffered frequent, disabling seizures if he went off his medications, the employer must focus on whether the employee is substantially impaired in his non-medicated state.

The final rule does allow an employer to take into account negative effects from application or use of the mitigating measure (e.g., side effects from medication). If the side effects substantially limit the employee, then the mitigating measure may qualify the employee for ADA protection. Typically, though, if the mitigating measure causes impairing side effects, it is likely the underlying unmitigated condition is similarly impairing. 

Consideration of these negative effects, either due to the underlying condition or mitigating measures, may be considered in determining reasonable accommodations or whether the individual qualifies for a particular job or poses a "direct threat."

Episodic impairments

A person is covered by the Act even if the impairment is in remission or only episodic in nature, so long as the impairment would substantially limit a major life activity when it was active. Examples of conditions that may invoke this aspect of the Act include epilepsy and cancer.

"Regarded as" disabled

Even if an impairment would not otherwise qualify as a disability under the Act, because it does not substantially impair a major life activity, the employee may be protected by the Act if the employee was "regarded as" disabled because of an actual or perceived impairment. This amendment broadens the concept of "regarded as" having a disability under the Act because previously the perceived impairment had to satisfy the requirements of a covered disability.

If an employee claims adverse employment action was taken based on the "regarded as" prong of the Act, it does not matter if the employee is substantially limited in a major life activity. The EEOC will focus primarily on whether adverse employment action was taken by the employer based on the impairment or perceived impairment.

Transitory and minor impairments

When the final regulations were published, the Federal Register noted: "[D]uration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity. Impairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe." 

If the impairment is both minor and transitory in nature, with actual or expected duration of impairment six months or less, a person may not claim ADA protection for "being regarded as" disabled. A person with a temporary impairment still may assert a claim under the other two prongs of the Act (a physical or mental impairment, or a record of such impairment). The EEOC speakers at the recent Minnesota State Bar Association Upper Midwest Employment Law Institute confirmed that impairments must be both transitory and minor in order to be excluded from the "regarded as" prong of the disability definition. Therefore, for example, if an impairment is shorter-term than six months, but severe in nature, it may be covered. Conversely, if an impairment is minor in nature but expected to last more than six months, coverage may exist under the ADA. If the impairment is temporary, the accommodation will be, as well.

Enforcing the expanded ADA is an EEOC priority

Recent settlements resulting from suits brought by the EEOC against employers demonstrate the EEOC's intent to aggressively enforce the liberal intent of the ADA. Peggy Mastroianni, Associate Legal Counsel at the EEOC, spoke at the Minnesota State Bar Association’s Upper Midwest Employment Law Institute on May 24, 2011 and indicated it was her belief the EEOC would focus on leaves, schedules and workplace policies as it examined accommodation issues under the expanded ADAAA.  She reported that the EEOC has been suing out a lot of cases involving leave and employer policy issues which it feels are inconsistent with the new Act and regulations.  

As described in earlier newsletters, in one suit, the EEOC alleged the employer violated the ADA by failing to allow employees with disabilities to return to work without a full-duty, no-restriction doctor's release. While an employer can require an employee to bring in a medical slip or prove that she is capable of physically performing the essential functions of the job, employees are often able to perform the necessary duties, even though they are not "restriction-free."  

In another suit, also discussed in an earlier newsletter, an employee claimed disability discrimination after the employer terminated him at the end of his workers' compensation leave. The employee continued to experience disability from his work-related injuries, but alleged he had repeatedly tried to return to work and was never provided any reasonable accommodations to facilitate his return. The EEOC claimed that the employer terminated employees on leave without considering reasonable accommodations or reasonable extensions of their leaves.

More recently, a Consent Decree negotiated earlier this year in the case of EEOC v. Supervalu/Jewel-Osco, (N.D. Ill. 2011), concerned disabled employees terminated after expiration of a one-year fixed leave, with no reasonable accommodations provided. The relief included $3.2 million and extensive remedial relief. As explained in the EEOC's news release:

Jewel-Osco will also hire consultants to review and recommend changes to its current job descriptions, accurate and provide recommendations on possible accommodations to common work restrictions in various positions in the stores. The company will have to report regularly to the EEOC on its efforts to accommodate employees with disabilities who are attempting to return from medical leaves of absence. Furthermore, Jewel-Osco will revise its communications with such employees to assure them that they need not be 100% healed in order to be considered for a return to work, and to inform them of some of the types of accommodations that may be available to them if they are considering returning to work with medical restrictions.

What should employers do now in light of these amendments?

  • Presume the employee is a qualified individual with a disability and move on to the reasonable accommodation analysis sooner rather than later. As noted by Chai Feldblum, one of the Commissioners of the EEOC who spoke at the Minnesota State Bar Association's Upper Midwest Employment Law Institute on May 23, 2011, employers should stop obsessing whether an employee is covered by the Act and instead get to the issue of whether the employee is qualified to perform the essential functions of the job with or without a reasonable accommodation. As further emphasized in one of the Q&A resources concerning the Final Rule, the regulations now separate out the terms "individual with a disability" and "qualified individual" with discrimination prohibited "on the basis of disability" rather than "against a qualified individual with a disability" to reflect the intent that the ADA focus on whether discrimination occurred rather than whether an individual meets the definition of disability.

  • Review policies concerning return-to-work or physical requirements/essential functions for jobs. Employers who have a return-to-work policy requiring employees at "full duty" or "restriction free" before returning to work, or a policy that provides for a bright-line timeframe for leave, should revisit the wording and/or application of those policies. When an employee reaches the end of available leave, an employer should perform another reasonable accommodation analysis before taking any adverse action concerning the employee's employment status. An employer also should consider revisiting an employee's status periodically while they are out on leave, particularly as the employee's condition changes, to determine whether reasonable accommodations would allow them to return to employment.

  • Educate supervisors and managers about the obligations employers have under the ADA. Given the significantly expanded concept of disability, and broad potential coverage under the "regarded as" disabled prong of the act, employers need to educate their managers and supervisors about the ADA. Managers and supervisors should be trained on the risks of adversely changing an employee's terms and conditions of employment based on fear of re-injury or other perceived disability. The reasonable accommodation process should be a subject of training, as well. The leave and return-to-work process must be managed and supervised with even more care, given the expanded protections of the ADA.

  • Accurately tracking and recording performance issues throughout an employee's tenure with an employer is critical. If performance is used as a defense to justify adverse employment action in a case where the employee claims disability discrimination, whether based on actual or perceived disability, consistency in the performance evaluation process is important.

More resources concerning the ADA Amendments Act and regulations

NOTICE: The distribution and receipt of the information provided in this newsletter does not create or continue any attorney-client relationship. The information provided is general in nature and should not be treated as legal advice concerning any particular set of facts or circumstances. Recipients should consult with their attorney before acting on any information discussed in each issue.

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