The ADA Amendments Act of 2008, EEOC’s

Final Regulations, and ADA Compliance

Equal Employment Opportunity Commission

Office of Legal Counsel

2011

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The Americans With Disabilities Act: Legal Claims

Disparate treatment Denial of reasonable accommodation Qualification standards that screen out based

on disability Harassment Disability-related inquiries and medical

exams Confidentiality of medical information Retaliation

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ADA Amendments Act of 2008

Signed into law September 25, 2008

Effective date: January 1, 2009

Makes important changes to definition of “individual with a disability”

Much easier to meet definition of an “individual with a disability”

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Definition of “Disability”

Three-part definition:

-A physical or mental impairment that substantially limits a major life activity;-A record of such an impairment; or-Being regarded as having a disability

In the ADAAA, Congress changed the meaning of key terms used in these definitions.

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ADAAA’s Major Statutory Changes to the Definition of “Disability”

“Substantially Limited in a Major Life Activity”:

1. Need not be a “severe” limitation or “significantly restricted”

2. Major life activities include “major bodily functions”

3. Ameliorative effects of mitigating measures not considered

4. Impairments that are “episodic” or “in remission” are substantially limiting if they would be when active

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ADAAA’s Major Statutory Changes to the Definition of “Disability” (cont.)

“Regarded As”:

5. No longer requires that employer perceived substantial limitation in a major life activity --

- Now covers anyone subjected to an action “prohibited by this Act” because of an actual or perceived physical or mental impairment

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EEOC Regulations (29 C.F.R. part 1630)

Published in the Federal Register on March 25, 2011

Effective Date: May 24, 2011 Regulations closely track the statute Published along with revisions to interpretive

guidance issued with the original regulations (also known as the appendix)

EEOC revised only those portions of the regulations and appendix affected by the ADAAA

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Major Life Activities [§ 1630.2(i)]

Statute and EEOC regulations provide two non-exhaustive lists of major life activities

First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts- 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

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Major Life Activities Include Major Bodily Functions

New category of major life activities Will make it easier for individuals with many different

types of impairments to establish disability Examples include 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, reproductive

Also includes operations of an individual organ within a body system, such as the operation of kidney, liver, or pancreas

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Major Life Activities (cont.)

Individual can show substantial limitation (or record of) in just one major life activity from either category

Regulations say that in determining other examples of major life activities, “the term ‘major’ shall not be interpreted strictly to create a demanding standard for disability.”

Whether something is a major life activity is not determined by reference to whether it is of “central importance to daily life.”

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Substantially Limits: Nine Rules of Construction [§ 1630.2(j)(1)]

1. Substantial limitation shall be construed broadly in favor of expansive coverage

2. Impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered substantially limiting. Nonetheless, not every impairment will be a disability.

3. Extensive analysis not required: Primary focus should be on a person’s qualifications for a job, need for reasonable accommodation, or whether discrimination occurred

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Substantially Limits: Rules of Construction (cont.)

4. Individualized assessment still required, but “substantially limits” is a lower standard than pre-ADAAA

5. Assessing ability to perform major life activity as compared to most people usually will not require scientific, medical, or statistical evidence, although presentation of such evidence is not prohibited

6. Ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses) shall not be considered

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Sixth Rule of Construction: Mitigating Measures

medication, medical supplies, equipment, or appliances, low-vision devices, prosthetics (including limbs and devices), hearing aids and cochlear implants or other implantable hearing devices, mobility devices, oxygen therapy equipment and supplies

use of assistive technology reasonable accommodations learned behavioral or adaptive neurological

modifications (e.g., monocular vision, learning disabilities)

psychotherapy, behavioral therapy, physical therapy

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Sixth Rule of Construction: “Ordinary Eyeglasses or Contact Lenses”

[definition at § 1630.2(j)(6)]

“Shall” take these into account in determining “disability”

Definition: “lenses that are intended to fully correct visual acuity or to eliminate refractive error”

Distinguished from “low vision devices” defined as “devices that magnify, enhance, or otherwise augment a visual image”

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Sixth Rule of Construction: Additional Points from Appendix on Mitigating Measures

can be individual with a disability even if no limitations, or only minor limitations -- where evidence that in absence of effective mitigating measure the individual’s impairment would be substantially limiting

can still be “individual with a disability” if forgo mitigating measures, but use or non-use may be relevant to whether “qualified” or “direct threat”

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Sixth Rule of Construction: Additional Points from Appendix on Mitigating Measures (cont.)

Evidence could include limitations person experienced prior to using a mitigating measure, expected course of a particular disorder absent mitigating measures, or readily available and reliable information of other types.

“However, we expect that consistent with the Amendments Act’s command (and the related rules of construction in the regulations) that the definition of disability ‘should not demand extensive analysis,’ covered entities and courts will in many instances be able to conclude that a substantial limitation has been shown without resort to such evidence.”

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Substantially Limits: Rules of Construction (cont.)

7. Impairments that are episodic or in remission can be substantially limiting if would be when active

8. Individual need only be substantially limited in one major life activity (either list) to have a disability

9. No minimum duration -- Impairment lasting fewer than six months may be substantially limiting

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Types of Impairments That Will Virtually Always Be Found To Be Substantially Limiting [§ 1630.2(j)(3)(ii)]

Regulations emphasize that individualized assessment still required

But, for certain impairments, this individualized assessment will virtually always result in a finding of substantial limitation due to the inherent nature of these conditions AND the extensive changes Congress made to the definition of disability

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Types of Impairments That Should Easily Be Found To Be Substantially Limiting[§ 1630.2(j)(3)(iii)]

Deafness, blindness, mobility impairments requiring use of a wheelchair, intellectual disability (mental retardation), partially or completely missing limbs

Autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy

Mental impairments such as major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, schizophrenia

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Condition, Manner, or Duration[§ 1630.2(j)(4)]

Some impairments will, as a factual matter, not fall into the category of impairments described above.

With regard to these impairments, the regulations retain the “condition, manner, or duration” concepts to consider, if relevant, in determining if a substantial limitation exists.

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Condition, Manner, or Duration[§ 1630.2(j)(4)] (cont.)

For example, may consider:

-- the difficulty, effort, or length of time required to perform major life activity

-- the pain experienced when performing a major life activity;

-- the amount of time major life activity can be performed; or

-- the way an impairment affects the operation of a major bodily function

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“Record of” a Disability [§ 1630.2(k)]

2nd prong of definition of disability All of the changes reviewed for 1st prong of

definition (e.g., disregarding ameliorative effects of mitigating measures) would apply to a “record of” disability

Probably much less likely to need this definition for coverage given expansion of 1st and 3rd definitions of disability

Individuals with “record of” disability may be entitled to reasonable accommodation

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“Regarded As” Having a Disability [§ 1630.2(l)]

This third prong of the definition of disability is completely redefined

Now covers anyone subjected to an action “prohibited by this Act” because of an actual or perceived physical or mental impairment

For example, applies to actions such as: refusal to hire, rescission of conditional job offer, demotion, denial of promotion, termination, discipline, annual evaluation and compensation decisions, placement on involuntary leave

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“Regarded as” (cont.)

Regarded as coverage NO LONGER requires a showing that an employer believed the impairment substantially limited a major life activity

Only two elements: Employer took employment action Because of an individual’s actual or

perceived impairment

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“Regarded as” (cont.)

Employer can defeat “regarded as” coverage by showing that the impairment at issue is BOTH transitory and minor [1630.15(f)]

Transitory: Lasting or expected to last 6 months or less

Whether impairment is transitory and minor determined objectively

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“Regarded as” (cont.)

“Regarded as” coverage does not mean employer violated the ADA

Employer may defend its employment action and, if the action taken for lawful reasons, then no discrimination

Individuals covered only under “regarded as” definition NOT entitled to reasonable accommodation

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“Regarded as” (cont.) refusal to hire because of skin graft scars –

regarded as termination because of cancer – regarded as termination of employee with angina due to

belief he will pose a safety risk – regarded as termination of employee with bipolar – regarded

as; employer can’t assert it believed impairment was transitory and minor

termination of employee with hand wound that employer mistook as HIV – regarded as because the perceived impairment (HIV) on which the employer acted is not transitory and minor

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Association with an Individual with a Disability

Not directly changed by ADAAA, but new definitions would apply to determining if person with whom applicant or employee has an association has a “disability”

ADA also still prohibits discrimination (disparate treatment or harassment) against an applicant or employee based on their “association” with a person with a disability (e.g. family member)

BUT: Employer still not required to provide ADA accommodation based on employee’s “association” with a person with a disability

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Additional ADAAA provisions

“Uncorrected Vision” Standards:

Must be “job-related and consistent with business necessity”

Any applicant or employee can challenge, even if not an “individual with a disability”

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Additional ADAAA provisions (cont.)

Affirmative Action:

ADA now states expressly:

“Nothing in this Act shall provide a 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.”

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ADAAA Implications

First two prongs of the definition of “disability” will primarily be relevant where someone needs reasonable accommodation or claims an accommodation was unlawfully denied

“Regarded as” prong will probably be most likely basis for coverage in non-accommodation cases

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ADAAA Implications (cont.) Where accommodation is requested, focus

should be on NEED for accommodation rather than coverage

Where accommodation is requested, employers may still ask for documentation to substantiate existence of non-obvious disability, but it will be different from, and likely less extensive than, documentation pre-ADAAA

Employers can also still ask for documentation to substantiate the need for accommodation

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ADAAA Implications (cont.)

Employers are more likely to have to defend qualification standards that exclude individuals from jobs based on impairments, since individuals affected by such standards will generally meet the “regarded as” definition of “disability” (i.e., unlikely that the impairments will be both transitory and minor)

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ADAAA Implications (cont.)

Are qualification standards job-related and consistent with business necessity? Is decision to exclude applicant or employee for medical reason justified because not qualified or would pose a direct threat to safety?

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ADAAA Did Not Change the Definitions of:

Qualified Reasonable Accommodation Undue Hardship Direct Threat Disability-Related Inquiries and Medical

Exams Medical Confidentiality Retaliation

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“Qualified” under the ADA

Has the requisite skill, education, experience and meets the other job-related requirements; and

Can perform essential functions with or without reasonable accommodation

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Essential v. Marginal Functions

Focus on purpose of the function – the result to be accomplished – not how function is performed

Is individual actually required to perform this function? How often?

Consequence of removing function? Does position exist to perform this function? Are special skills required?

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Reasonable Accommodation

Reasonable accommodation is required for the known physical and mental limitations of an individual with a disability who is qualified, unless the employer can show undue hardship.

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Reasonable Accommodation

Accommodation May Be Needed for:

Application process

Job performance and access to the workplace

Benefits and privileges

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Examples of Reasonable Accommodation Making physical modifications to the workplace, acquiring

equipment or assistive devices, or modifying existing equipment Making exceptions to policies Using different supervisory methods or modes of communicating Job restructuring (swapping or eliminating marginal functions) Part-time work or modified work schedules Sign language interpreters or readers Leave (unpaid leave where accrued leave, FMLA, etc. are

exhausted or unavailable) Telework Reassignment to a vacant position

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Actions Not Required as a Reasonable Accommodation

Removing an essential function or hiring someone else to perform it

Lowering performance or production standards

Excusing misconduct in violation of uniformly applied rules that are job-related and consistent with business necessity

Providing “personal use items,” such as eyeglasses, wheelchairs, or prosthetic limbs

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Recognizing Requests for Reasonable Accommodation Reasonable accommodation process generally

begins with request from applicant or employee

Request does not have to include any “magic words” such as “ADA” or “reasonable accommodation”

Request does not have to be in writing

Request may come from someone other than applicant or employee (e.g. family member, health care provider, or counselor)

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“Interactive Process”

Communicate, exchange information, search for solutions, consult resources as needed

If requestor only knows the problem, not the solution, employer must search for possible solutions

If requestor specifies particular solution but it cannot be provided, employer must search for and consider alternatives

If more than one possible accommodation exists, employer has discretion to choose among equally effective alternatives

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Supporting Medical Information

When and how much can employer request?

GINA implications

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Reassignment

Available to employees only, not applicants Vacant position that is not a promotion Must be qualified Equivalent position, if possible

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Undue Hardship Defense

Must be significant difficulty or expense

Consider:- Nature of the accommodation- Net cost of the accommodation- Overall financial and other resources of the

employer- Impact of the accommodation on operation of

employer’s business

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Undue hardship?

A qualified deaf individual applies for a policy advisor position at a large federal agency. The position involves participating in many meetings and making presentations, including out of town, for which she would use a sign language interpreter on a regular basis. Would providing a full-time interpreter, including during business travel, constitute an undue hardship?

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Accommodation Request Made in Response to Poor Performance Rating

Bob’s supervisor gives him an unsatisfactory bi-annual performance rating because his productivity has not met expectations. Bob responds that the reason his productivity has slowed is that his worsening vision impairment has made it difficult for him to work with small print on the documents he must review.

What should Bob’s supervisor do?

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Productivity Affected By Leave That Was Granted as an Accommodation

A food inspector is granted six months of leave as an accommodation due to disabling cancer treatment. In her annual performance appraisal, her supervisor proposes to rate her productivity as unsatisfactory because, due to her absence, her overall production for the year was half of what would otherwise be expected.

What should human resources advise?

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Telework as a Reasonable Accommodation Sally, one of John’s top analysts, has been

diagnosed with multiple sclerosis, a degenerative disease which makes her commute to work increasingly difficult. She asks to work from home full time. She has worked from home occasionally, but John is unsure whether he has the authority to grant her request, since the company policy only allows employees to telework 1 day per week. He is also concerned that Sally is not very productive at home, and doesn’t want her to miss their informal “brainstorming” sessions and other regular meetings. What should he do?

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Intersections

ADA and FMLAADA and workers’ compensation

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Direct Threat Defense

Direct threat requires an individualized assessment

Direct threat exists when:

-- An individual poses a significant risk of substantial harm to the health or safety of himself or others because of his disability, AND

-- The risk cannot be reduced or eliminated with a reasonable accommodation

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Direct threat? Factors to consider:

- Duration of the risk

- Nature and severity of the potential harm

- Likelihood that the potential harm will occur

- Imminence of the potential harm

- Whether the risk can be eliminated or reduced with a reasonable accommodation

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Disability-Related Inquiries

A question is “disability-related” if the

answer is likely to disclose whether

or not an individual has a disability.

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Medical Examinations

A procedure or test is a “medical examination” under the ADA if it seeks information about an individual's physical or mental impairments or health.

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Disability-Related Inquiries and Medical Examinations

Pre-offer:

general rule - none

Post-Offer, Pre-employment:

yes, if required of all entering employees in same job category

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Current Employees Once individual is employed, disability-related inquiries

or medical exams are permissible if job-related and consistent with business necessity, i.e.:

-- If the employer has a reasonable belief based on objective evidence that due to a medical condition the employee

may not be able to perform an essential function or may pose a direct threat;

-- In support of an accommodation request, if the disability or need for accommodation is not obvious or already known; or,

-- In limited circumstances, for positions affecting public safety if narrowly tailored to address specific job-related

concerns

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Confidentiality of Medical Information includes all medical information of all applicants and

employees, from whatever source obtained

includes fact that someone has requested or received an accommodation

violation of ADA to disclose to other managers, co-workers, or even other employers unless exception applies

documents containing confidential medical information cannot be kept in regular personnel files

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Limited Exceptions Otherwise confidential medical information may be disclosed in the

following circumstances:

to supervisors and managers where they need it in order to provide a reasonable accommodation or to meet an employee's work restrictions;

to first aid and safety personnel if an employee would need emergency treatment or require some other assistance in an emergency (such as help during an evacuation) because of a medical condition;

to individuals investigating compliance with the ADA and with similar state and local laws; and

pursuant to workers' compensation laws (e.g., to a state workers' compensation office in order to evaluate a claim) or for insurance purposes.

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Helpful Links

Text of the amended statute, the final regulations, and EEOC question & answer documents:

http://www.eeoc.gov/laws/types/disability.cfm

EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship (2002): http://www.eeoc.gov/policy/docs/accommodation.html