ada & the new disabilities deborah k. st. lawrence thompson, esquire september 20, 2012

ADA & The New Disabilities

Deborah K. St. Lawrence Thompson, Esquire

September 20, 2012

OVERVIEW OF

Americans with Disabilities Act

(ADA) AND

Americans with Disabilities Act

Amendments Act (ADAAA)

September 20, 2012 | ADA & THE NEW DISABILITIES 2

Americans With Disabilities Act of 1990 (ADA)

Prohibits discrimination against qualified

individuals with disabilities in job

application procedures, hiring, firing,

advancement, compensation, job training,

and other terms, conditions, and privileges

of employment.



An individual with disability is a person

who:

Has a physical or mental impairment

that substantially limits one or more

major life activities;

Has a record of such an impairment; or

Is regarded as having such an

impairment.



A qualified employee or applicant with a

disability is an individual who, with or

without reasonable accommodation, can

perform the essential functions of the job in

question.


Americans With Disabilities Act Amendments Act of 2008 (ADAAA)

Broadens the definition of “disability”

Term “substantially limits” -o requires a lower degree of functional

limitation than the standard previously applied by the courts;

o must be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA;

o requires an individualized assessment.


Americans With Disabilities Act Amendments Act of 2008 (ADAAA)

“Impairment” may be physical or mental - Physical impairments include: physiological disorders

or conditions, cosmetic disfigurement, anatomical loss

(neurological, musculoskeletal, special sense organs,

respiratory, cardiovascular, reproductive, digestive,

genitourinary, lymphatic, skin, endocrine)

Mental impairments include: emotional or mental

illness (including but not limited to major depression,

bipolar disorder, anxiety disorders, schizophrenia,

personality disorders).


OBESITY


Obesity

The EEOC’s position has always been that morbid

obesity (defined as having a body weight more than

100% over the norm) and obesity caused by a

physiological disorder are “disabilities” under the

ADA.

In the past, courts have been split on whether the

ADA covers morbid, or severe, obesity by itself, or if

the obesity must be the result of some underlying

physiological disorder (i.e., hypertension, diabetes,

thyroid disorder).


Obesity

The Fourth Circuit Court of Appeals has held

that obesity alone, without an underlying

physiological condition that caused the

obesity, is not a disability within the meaning

of the ADA. Hill v. Verizon Maryland, Inc. (D.

Md. July 13, 2009).► Plaintiff’s weight exceeded Verizon’s maximum weight limit

for performing aerial work. Verizon removed Plaintiff from the field, and assigned him office clerical work.


Obesity

A federal court recently found severe obesity,

regardless of the cause, to be a disability

under the ADA. E.E.O.C. v. Resources for

Human Development, Inc., 2011 WL 6091560

(E.D. La. Dec. 07, 2011).► Plaintiff weighed about 400 pounds when she was hired.

The employer terminated the plaintiff when it found that her weight severely impaired her job performance. At the time of her termination, she weighed 527 pounds.

► Death Certificate listed cause of death as ‘morbid obesity’ with significant contributing causes: hypertension, diabetes, congestive heart failure

► Case settled for $125,000September 20, 2012 | ADA & THE NEW DISABILITIES 11

Bottom Line

In the United States, approximately 34% of adults

are obese.

Employers should recognize obesity as a potential

disability that may require reasonable

accommodation through the “interactive process”

called for by the ADA.


EPISODIC IMPAIRMENTS


Episodic Impairments

Under the ADAAA, an impairment that is

episodic or in remission is a disability if it would

substantially limit a major life activity when

active;

The fact that the periods during which an

episodic impairment is active and substantially

limits a major life activity may be brief or occur

infrequently is not relevant.


Epilepsy

The Fourth Circuit Court of Appeals recently held

that epileptic seizures lasting a couple of minutes

are mild enough that they do not impose any

restrictions on activities that are greater than those

of the “average person in the general population”

performing the same activities, thus is not a

disability under the ADA. Carrier v. VCA Animal

Hosp., Inc. (D. Md. Aug. 13. 2012).► Plaintiff’s experienced compressed partial seizures,

which lasted 30 seconds to 2 minutes, and were controlled by medication. Plaintiff was terminated for performance related reasons.


Epilepsy

Plaintiff’s state law claims survived

because Article 49B of the Maryland

Code explicitly includes epilepsy in its

definition of disability.


Migraine

Tenth Circuit Court of Appeals recently held that

an employee who suffered from migraine only

while working for a particular physician was not

disabled under the ADA. Allen v. SouthCrest

Hosp., (10th Cir., Dec. 21, 2011).► Court acknowledged that migraines, when active and treated

with medication, did not permit plaintiff to perform activities to care for herself and compelled her to go to sleep. However, to be disabled in major life activity of ‘working’, plaintiff must be significantly restricted in ability to perform either a class of jobs or a broad range of jobs in various classes as compared to average person of similar skill and training. Plaintiff’s condition only affected her work for one physician.


INABILITY TO WORK

OVERTIME


Employee’s Inability to Work Overtime is Not a Per Se Disability

In February 2012, the Fourth Circuit Court of

Appeals concluded that the inability to work overtime

is not, in and of itself, a disability under the original

version of the ADA. Boitnott v. Corning Inc., (4th Cir.,

Feb. 10, 2012).

Plaintiff was a maintenance engineer who was

diagnosed with a mild form of leukemia that did not

require medical treatment. However, his doctor

limited him to eight hours of work per day due to

fatigue related to the condition. Corning responded

that the job required the ability to work overtime,

and removed him from his position.September 20, 2012 | ADA & THE NEW DISABILITIES 19

Boitnott v. Corning, Inc. – Employee’s Inability to Work Overtime is Not a Per Se Disability

Plaintiff contended that his leukemia substantially interfered

with the major life activity of working, in that it prevented him

from working overtime.

The Fourth Circuit disagreed, holding that an inability to work

overtime does not constitute a disability. An employee is not

“substantially limited” if he or she can work a 40-hour

workweek, but is unable to work overtime hours.

Numerous federal appellate courts previously have addressed

the question of whether the inability to work overtime is a

substantial limitation on the major life activity of working. The

Fourth Circuit’s recent opinion comports with the law in the

First, Third, Fifth, Sixth, and Eighth Circuits.


The Decision’s Implications

The Fourth Circuit was careful to make an individualized

inquiry into the facts. Employers should not assume that

the inability to work overtime can never support a

successful ADA claim.

This case was decided before the ADAAA. Under ADAAA, it

is likely that the leukemia itself, even in the absence of

significant symptoms, would qualify as an ADA disability.

In addition, the ADAAA broadens the definition of

restrictions that limit persons in their ability to work. The

inability to work overtime may qualify as a restriction that

would classify restricted employees as disabled under the

ADA.September 20, 2012 | ADA & THE NEW DISABILITIES 21

The Decision’s Implications Cont’d

Post-ADAAA litigation in this area will shift from the

threshold issue of disabled status to the reasonable

accommodation question. Is the ability to work

overtime an essential job function? If so, what steps

can the employer take to allow an employee with

hours restrictions to work some overtime? Can work

schedules be changed to accommodate the employee's

medical restrictions? Can the disabled employee

trade schedules with other employees to allow him to

work within his medical restrictions?


INCREASED PUSH TO BRING

DISABLED VETERANS BACK

TO WORK


EEOC Guidance Regarding Disabled Veterans (x2)

In February 2012, the EEOC released a guide for

employers regarding veterans and the ADA, and a

separate guide for wounded veterans on understanding

their ADA rights.

The EEOC noted that approximately 25% of recent

veterans have a service-connected disability, compared to

about 13% of all veterans, according to 2011 U.S. Bureau

of Labor statistics.

The guide also states that some service-connected

disabilities, such as deafness, blindness, missing limbs,

mobility impairments, major depressive disorder and post-

traumatic stress disorder will easily be concluded to be

disabilities under the ADA.


Reasonable Accommodations

Written materials in accessible formats, such as

large print, Braille and on computer disk.

Alternative hiring and recruitment practices -

recruitment fairs, interviews, tests and training in

accessible locations.

Modified equipment and devices, such as assistive

technology, a glare guard for a computer monitor

used by someone with a traumatic brain injury and a

one-handed keyboard for a person missing an arm

or hand.



Physical modifications to the workplace, including

adjusting the height of a desk or shelves for

someone in a wheelchair.

Leave for treatment, recuperation and training

related to their disability.

Reassignment to a vacant position when a disability

prevents performance of the employee’s current job

or where accommodating the employee in the

current job would result in undue hardship.



Make existing facilities used by employees readily

accessible to and usable by persons with

disabilities;

Job restructuring, modifying work schedules,

reassignment to a vacant position;

Acquiring or modifying equipment or devices,

adjusting or modifying examinations, training

materials, or policies, and providing qualified

readers or interpreters.


EEOC’S CHALLENGE TO

INFLEXIBLE LEAVE/NO-

FAULT ATTENDANCE

POLICIES


Employer Policies are the Subjectof Increased Enforcement Activity

Over the past few years, the EEOC has

aggressively targeted inflexible leave of absence

policies and no-fault attendance policies.

There have been a number of multi-million dollar

settlements against employers in 2011 alone. In

July 2011, Verizon agreed to pay $20 million to

employees who were fired or disciplined under the

company’s No-Fault Attendance policy, the largest

EEOC disability discrimination settlement in

history.


What are Inflexible Leave of Absence Policies and No-Fault Attendance Policies?

Inflexible leave of absence policies provide for the

automatic termination of employees who cannot

return to work after exhausting a fixed period of

leave.

No-fault attendance policies charge an absence

against an employee regardless of the reason for

the absence. Thus, problems arise when the

employer fails to recognize – and exclude from the

policy – absences that relate to a disability or that

fall under the FMLA.September 20, 2012 | ADA & THE NEW DISABILITIES 30

Medical Leave for Prolonged or Indefinite Periods are Generally Not Reasonable

Employer does not need to give bus driver with

diabetes, hypertension, and a chronic heart

condition indefinite leave to try to recover.

Employee had received only 10 days of leave, but

his condition indisputably made him unable to

perform the job. The ADA does not require an

employer to provide an accommodation in the

hope that sometime in the future the disabled

individual will become qualified for the position in

question. Myers v. Hose, 50 F. 3d 278 (4th Cir.

1995). September 20, 2012 | ADA & THE NEW DISABILITIES 31

Indefinite Reprieve of Essential Functions of Job Are Generally Not Reasonable

Supervisor of felony offenders whose FMLA leave

expired, and whose doctor’s note did not have a

reasonable estimate of when she would be able to

resume all essential functions of her positions is

properly subject to termination. Robert v. Bd. Of

Commrs. Of Brown County, (D. Kan. May 14,

2009). Court concluded that plaintiff was asking for an open-

ended, indefinite leave of absence.


Medical Absences for Definite Periods May Be Reasonable Accommodations…

…Especially if the Length of the Leave Falls

Within the Employer’s Leave Policies. Where a disabled employee requests medical leave for a short

and determinable period, the ADA requires the employer to

allow such leave as reasonable accommodation, especially if the

length of the leave falls within the maximum amount of time

granted by the employer's leave plan.

Sales representative with depression and anxiety was unfairly

denied additional time off after he took one month’s leave. The

court noted that the employee’s leave request was for less time

than the employer's medical leave plan provided to nondisabled

employees (which was 1 year). Criado v. I.B.M. Corp., 145 F.3d

437 (1st Cir. 1998).September 20, 2012 | ADA & THE NEW DISABILITIES 33

Medical Absences for Definite Periods May Be Reasonable Accommodations…

…Especially if the Length of the Leave Falls

Within the Employer’s Leave Policies. Similarly, a network technician with PTSD was entitled to a

four-to-five-month medical leave for an inpatient treatment

program that his treating psychiatrist had recommended, even

though he had already gotten 5 weeks of leave. Rascon v. US

W. Commc'ns, Inc., 143 F.3d 1324 (10th Cir. 1998).


Compliance Strategies

Review written job descriptions for each position to ensure

that you and the employee are clear on expectations (accurate,

robust job descriptions are a must!)

Consider the consequences of not requiring the employee to

perform all job functions in the written job description.

Review policies and practice to ensure that they communicate

a willingness to consider excusing absences under the ADA

and other similar laws (100% healed/without restrictions

policies are dangerous!)

Train your employees to understand and recognize situations

that may implicate the ADA and FMLA, to refer leave of

absences request to Human Resources for proper handling,

and to understand the company’s legal obligations.September 20, 2012 | ADA & THE NEW DISABILITIES 35

Compliance Strategies

Ensure that attendance programs and policies are applied

uniformly. Confirm that ADA-protected absences are not counted against

employees in performance reviews.

Engage in the interactive process – and document it.

Don’t forget about ADA employees on leave; develop

documentation to show that you considered return-to-work

options along the way.

Don’t be afraid to follow up with the employee when leave is

unpredictable, chronic or more frequent than expected.


5 Easy Steps to Losing An ADA Case

1. Make a snap judgment that a disabled employee’s

request for additional is unreasonable;

2. Don’t even consider additional leave as a possible

accommodation;

3. Don’t engage in any interactive dialogue with the

disabled employee;

4. Don’t request any additional medical information;

5. When you fire the disabled employee be sure to state in

the termination letter “Due to your long term disability

we must terminate your employment.”


5 Tips to Winning An ADA Case

1. Listen carefully to determine if a disabled employee is

requesting a reasonable accommodation and engage in an

Interactive Dialogue to determine what can be done to

accommodate the disability;

2. Make an individualized assessment of each request (the

employee may not get precisely what he requests ; what is

reasonable for one employer may not be reasonable for

another);

3. Be clear on the essential functions of the disabled employee’s

job;

4. Obtain all medical information to which you are legally entitled

so that you can make the most informed decision about: (i) the

employee’s ability to return to work, and (ii) whether an

accommodation may help the employee perform the job;

5. Keep communicating with your employee.


ada & the new disabilities deborah k. st. lawrence thompson, esquire september 20, 2012

Documents

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