ADAAA: Crippling Employers?

ADAAA: CRIPPLING EMPLOYERS?

January 14, 2014

Joseph “Trey” L. WoodBoyarMiller832.615.468

twood@boyarmiller.com

BoyarMiller-Employee Relations

BoyarMillerEMPLOYEE RELATIONS

A Little History behind the ADAAA

Winning Percentages

Catch 22

Too disabled

Not disabled

Comparison of new definition of disability to the oldOld DefinitionA physical or mental

impairment that substantially limits one or more major life activities; or

A record of such impairment; or

Being regarded as having such impairment.

New Definition A physical or mental

impairment that substantially limits one or more major life activities; or

A record of such impairment; or

Being regarded as having such impairment.

“Disability” Definition to Be Read Broadly

“A broad scope of protection…”Courts should provide coverage for

plaintiffs “to the maximum extent permitted”

Definition extends to impairments that are episodic or in remission.

“Major Life Activity”

Caring for oneself; Performing manual tasks; Seeing Hearing Eating; Sleeping; Walking; Standing; Lifting; Bending; Speaking; Breathing; Learning; Reading; Concentrating; Thinking; Communicating; Working

Operation of any major bodily function◦ Immune system◦ Cell growth◦ Digestive functions◦ Reproductive functions◦ Endocrine◦ Bowel◦ Bladder◦ Neurological◦ Brain◦ Respiratory◦ Circulatory

Mitigating Measures Ignored

The Only Exception…

“Regarded As” More Broadley Read

EEOC Permitted to Regulate ADA and Define “Substantial Limitation

Highlights of New Regs

Adds reaching, sitting, and interacting with others as MLA’s;

Expands major bodily functions to include hemic, lymphatic and musculoskeletal systems;

In order to be “substantially limiting” an impairment need not severely or significantly restrict performance of MLA. (Rejecting Supreme’s interpretation)

Episodic Impairments: examples given are epilepsy, cancer, depression, hypertension, asthma, bipolar disorder and PTSD.

Regs Give Examples of Qualifying Disabilities

Deafness; Blindness; Intellectual disability; Partially or completely missing

limbs; Mobility impairments requiring

wheelchair; Autism; Cancer; Cerebral palsy; Schizophrenia;

Diabetes; Epilepsy; HIV/AIDS; Multiple Sclerosis; Muscular Dystrophy; Major Depression; Bipolar Disorder; PTSD; Obsessive-compulsive

disorder;

Highlights of New Regs5 Rules of Construction:

◦ Focus on whether discrimination occurred—not if there is a disability (no extensive analysis);

◦ Individual whose impairment substantially limits MLA need NOT show a limitation in inability to perform “activities of central importance to daily life.” (Rejection of Toyota v. Williams);

◦ Limitation of only one MLA is enough;◦ When looking at an individual’s limitation to determine

substantial limitation, use common sense, not scientific or medical evidence;

◦ “Transitory and minor claims:” Impairments < 6 months may be substantially limiting.

Application of the ADAAA by the Courts

Summary judgments going, going, gone!Changing the definition of a covered disability;There is no longer a requirement that for a finding of

liability against an employer that the employer “regarded as” disabled someone who is suffering from an impairment that substantially limits a major life activity;

Elimination of consideration of mitigating measures;Employee’s limited in the “major life activity” of

“working.”Employees with “episodic” conditions or “inactive”

conditions.

What you can expect in the future

What You Can Do About It

During the interactive process, remember that it is being done without regard to mitigating measures

Watch out for the “regarded as” prongReview policies and change them to

comply with the language of the ADAAAProvide TRAINING to decision makersReview and update written job descriptionsBefore pulling the trigger, call your lawyer

Reasonable Accommodation

Factors to consider for accommodation

Nature and cost;Overall financial

resources and size of company;

Impact on the business;

Would it be unduly disruptive to others

What is reasonable accommodation?

Working at home;Modified work schedules;Policy modifications;Modification of supervisory methods;Job coaches;Reassignment or transfers;Extended leave of absence;Job modifications;Special equipment or assistance