ipma-hr 2009 eastern region’s training and development conference october 4-7, 2009 margaret j....
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IPMA-HR 2009 EASTERN REGION’S TRAINING AND DEVELOPMENT CONFERENCE
October 4-7, 2009
Margaret J. Strange
Copyright 2009 Jackson Lewis LLP 2
THE ADA of 1990
• The ADA was meant to:• Provide a clear and comprehensive national
mandate for the elimination of discrimination
against individuals with disabilities and provide
broad coverage
• However, as a result of several Supreme Court
decisions and the EEOC’s interpretation of the
law, the initial intended protected became less
broad
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THE ADAAA
• Legislative history• The final version of the ADAAA was signed by
President Bush on September 25, 2008
• Went into effect on January 1, 2009
• Congressional purpose in enacting the ADAAA• To reinstate a broad scope of protection
• And to reject the Supreme Court decisions that
had narrowed the ADA’s protection
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• The definition of disability must be construed in favor of
broad coverage of individuals, to the maximum extent
permitted by the ADA.
• An impairment that is episodic or in remission is a disability if
it would substantially limit a major life activity when active.
• The term ‘substantially limits’ shall be interpreted
consistently with the findings and purposes of the ADA
Amendments Act of 2008.
• EEOC’s current regulations interpreting the term express too
high a standard.
ADAAA – DEFINITION OF “DISABILITY’
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• The ADAAA directs the EEOC to revise its regulations
interpreting “substantially limits.”
• Presently, EEOC regulations provide that “substantially
limits” means the individual is unable to perform a
major life activity or is significantly restricted as to the
condition, manner or duration under which an individual
can perform a particular major life activity as compared
to the condition, manner, or duration under which the
average person in the general population can perform
that same major life activity.
• It is unclear precisely what the EEOC’s revised standard
will be, but it will certainly be more lenient than the
current one.
IMPACT: THE EEOC WILL LOWER THE STANDARD TO BE DISABLED
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• Except for ordinary eyeglasses and contact lenses, the
ADAAA prevents courts and employers from considering
mitigating measures an individual may be using when
determining whether the individual is disabled.
• Therefore, it is quite likely that tens of millions of
individuals with conditions such as diabetes, high blood
pressure, carpel tunnel syndrome and cancer will have a
“disability” under the ADA.
• This then places an affirmative obligation on employers
to provide a reasonable accommodation.
• IMPACT: It will be harder to get cases dismissed
at an early stage and courts will focus more on
the interactive process and meaning of
“reasonable accommodation”
NO CONSIDERATION OF MITIGATING MEASURES
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Reasonable AccommodationsReasonable Accommodations
• An employer has a duty to reasonably accommodate an employee’s disability if the employer knows or reasonably should know that the employee was disabled. Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008).• In Brady, the employee had cerebral palsy
and walked with a limp and had recognizably slower speech.
• He alleged that Wal-Mart failed to reasonably accommodate his disability. Wal-Mart argued that the employee never requested such accommodations.
• Court noted that Wal-Mart was obligated to engage in an “interactive process” with the employee to determine whether his disability could have been reasonably accommodated.
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Interactive ProcessInteractive Process
• Dialogue between an employer and an employee where the parties work together to determine whether the employer can reasonably accommodate the employee’s disability.
• An employee may establish that an employer failed to engage in the interactive process in good faith by showing that:• The employer knew about the employee’s
disability; • The employee requested accommodations or
assistance for his or her disability; • The employer did not make a good faith effort
to assist the employee in seeking accommodations; and
• The employee could have been reasonably accommodated but for the employer’s lack of good faith.
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Interactive ProcessInteractive Process
• Employer’s inaction and statements of its human resources personnel suggested that there was inadequate interactive process. McBride v. City of Detroit, No. 07-12794 (E.D. Mich. Nov. 25, 2008).
• Plaintiff had sensitivity to perfumes and requested accommodation, including a policy that limited the use of scents in the workplace.
• HR representatives made statements such as: “If she’s allergic to perfumes and colognes
then she has the problem not the employer.” “The problem is [Plaintiff] and her symptoms.” “HR’s position is to limit the contact between
the employees.”
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Interactive ProcessInteractive Process
• To demonstrate good faith, an employer should: meet with the employee who requests an accommodation; request information about the condition and what limitations the employee has; ask the employee what he or she specifically wants; consider the employee’s request, and discuss available alternatives if the request is too burdensome. Ellis v. Ethicon, Inc., No. 05-726 (D.N.J. Mar. 28, 2008).• The Court held that the employer failed to
properly engage in the interactive process.• The court reasoned that no one at the
employer met with the employee once they received notice from two doctors that the employee would need certain accommodations. Additionally, no one requested information regarding the employee’s condition and reasons for the doctors’ recommendation.
• Employer offer of a part-time position on a take-it-or-leave basis failed to demonstrate good faith.
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EEOC Guidance on Applying Performance and EEOC Guidance on Applying Performance and Conduct Standards to Employees with Conduct Standards to Employees with
DisabilitiesDisabilities• EEOC Guidance Issued September 2008. (
http://www.eeoc.gov/facts/performance-conduct.html)
• Performance management, if done effectively, can help avoid discrimination, in addition to furthering an employer’s business objectives.
• What steps are appropriate when a disability is causing a performance issue? • An employer might have to provide a
reasonable accommodation to enable an employee with a disability to understand the exact nature of any performance issue.
• If an employee states that her disability is the cause of the performance problem, the employer should follow up by making clear what level of performance is required and ask why the employee believes the disability is affecting performance.
• The employer should ask whether there is an accommodation that may help raise the employee’s performance level.
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• The most profound change to the ADA is the definition
of an individual “regarded as” having a disability.
• There has been very little litigation in this area, and
even fewer cases decided in favor of a plaintiff.
• Before the ADAAA, an employee would have to prove
either the employer mistakenly regarded him or her as
having an impairment that substantially limited a
major life activity or the employer mistakenly believed
that an actual impairment substantially limited that
employee.
“REGARDED AS” CLAIMS WILL BE MORE DIFFICULT TO DEFEND
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• The ADAAA holds an employer liable under a “regarded
as” theory if the individual can show discrimination
because of an actual or perceived physical or mental
impairment, whether or not the impairment actually
limits or is perceived to limit a major life activity.
• Plaintiffs now only need to prove that adverse action
was taken as a result of mistaken belief about an
impairment.
• Plaintiffs only need to establish that the employer had
a mistaken belief about the individual’s ability to
perform his or her job, not a broad class of jobs or
other major life activities.
“REGARDED AS” CLAIMS WILL BE LIKELY TO INCREASE AND BE MORE DIFFICULT TO
DEFEND
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THE IMPACT OF THE ADAAA
• The EEOC will have the final determination regarding
the definition of disability
• Expect arguments in court that the changes
established by the ADAAA should be applied to state
disability discrimination laws
• Expect plaintiffs in the midst of a lawsuit to argue
that the ADAAA applies to their cases even though
the alleged violation occurred before 01/01/2009
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WHAT SHOULD EMPLOYERS DO?
• If you have not already, revisit issues addressed prior
to the ADAAA’s enactment, including:
• Job descriptions
• Handbook review
• Procedures regarding reasonable accommodation
• Forms/templates
• Training
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FMLA DevelopmentsFMLA Developments
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FMLA Cases
• Johnson v. Kmart, 2009 U.S. Dist. LEXIS 7698 (E.D. Mich. Jan. 7, 2009)• Michigan federal court denied summary
judgment for employer where employee was terminated for exceeding allowed absences under policy after he left work to care for son whose eye was injured by a dog
• Employer argued that son’s eye condition was not a “serious health condition” because record did not show he was incapacitated for more than three days
• To establish a “serious health condition” under the FMLA, employee only needs to demonstrate the injury appeared “likely” to lead to more than three days of incapacitation without medical attention
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FMLA Cases
• Brown v. Nutrition Management Services Co., 2009 U.S. Dist. LEXIS 4199 (E.D. Pa. Jan. 21, 2009)• Employer fired employee after she disclosed
she was pregnant• Employer had relied on HR representative’s
determination that the employee was not eligible for FMLA because she was on probation, although she had worked for 12 months
• Employer did not, however, attempt to determine whether her status on probation would actually affect her FMLA status under the law
• Finding the employer acted in bad faith, the court doubled jury award for the employee
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FMLA Cases
• Bryant v. Dollar General Corp., 538 F.3d
394 (6th Cir. 2008)
• Employer argued that, because the FMLA
does not explicitly protect employees
from retaliation, employees cannot bring
FMLA retaliation claims
• After examining the FMLA and its
regulations, the Sixth Circuit rejected the
employer’s argument
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Revised FMLA Regulations
• Revised regulations are over 750 pages
• They became effective on January 16,
2009
• Provide employers new tools to
administer FMLA more efficiently
• Overarching theme of the regulations is
“shared responsibility”
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Family and Medical Leave Act
General Notice Obligations Enhanced
• Covered employers must post a general FMLA notice even when they have no FMLA-eligible employees
Note: To be eligible, an employee must have 12 months of service with employer, which is now measured over 7 years
• Electronic posting satisfies requirement, assuming all employees have access
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Changes to Employee Notice Requirements
• Employees must explain reasons for
leave in a manner that allows an
employer to determine whether the
leave qualifies under the Act
• Employees can be required to comply
with customary requirements for
requesting leave
Family and Medical Leave Act
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Family and Medical Leave Act
Changes to Employer Notice Requirements• Employers must notify employees of their
eligibility to take leave, as well as their rights and responsibilities, within 5 business days of being put on notice of a FMLA-qualifying reason
• Employers must provide certification form for employees to give to their health care provider
• Requires greater detail regarding nature and duration of FMLA-qualifying illness/injury
• Employers must provide notice to employees confirming leave designation and amount of leave within 5 business days of receiving medical certification
• DOL has issued sample forms to assist employers with these requirements
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Family and Medical Leave Act
New Rules Governing Medical Certifications• Initial Medical Certification
• If condition extends beyond a leave year, certifications can be requested annually
• Recertification may be requested for continuing, open-ended conditions every 6 months
• Where a medical certification is deficient:• Employers must notify employees in
writing of the additional information necessary to make a certification complete
• Employees have 7 calendar days to cure deficiencies
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Family and Medical Leave Act
Changes: Fitness for Duty Certifications• Employers may demand more than a
“simple statement” of the ability to return to work
• Fitness for duty certifications for intermittent leave may be sought if reasonable safety concerns exist
Intermittent Leave Issues• Minimum duration may be shortest period
of time used to account for other leaves (but cannot exceed one hour)
• Employers are obligated to track intermittent leave and inform employees of amount of leave available
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Family and Medical Leave Act
Clarification of What Counts as FMLA Leave • Required overtime counts against FMLA
leave entitlement
• Light duty does not count against FMLA entitlement
Increased damages available• Where an employee interferes with FMLA
leave rights• Employee may recover “any other relief
tailored to the harm suffered” (among other damages)
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Military Family Leave
“Qualifying Exigency” • An eligible employee may take up to 12
weeks of leave due to a “qualifying exigency” where the employee’s spouse, son, daughter or parent is on active duty
• Includes attending military events, meetings to make financial arrangements, counseling
Leave to care for servicemember• An eligible employee may take up to 26
weeks of leave to care for a seriously injured or ill servicemember
• Employee must be “next of kin” to servicemember (broad definition)
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MARGARET J. STRANGESTRANGEM@JACKSONLEWIS.COM
ANY QUESTIONS?
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