ADA Amendment Act: A Practical Overview

JoAnn Shea, ARNP, MS, COHN-S

Director, Employee Health Services

Tampa General Hospital

Americans with Disabilities Act (1990)

• The Americans with Disabilities Acts gives Civil Rights Protections to individuals with disabilities.

• It guarantees equal opportunity in:

• Public Accommodations

• Transportation

• Telecommunications

• Government Services

• Employment

Why was the ADA law amended in 2008?

• Courts were interpreting ADA’s definition of disability narrowly.

• This resulted in denial of the ADA law’s protection for many individuals with impairments such as diabetes, cancer, epilepsy, etc.

• Only 13 million of 43 million disabled Americans were protected.

• Courts were using mitigating circumstances as reason to deny disability

• Hearing impaired individual with hearing aids/cochlear implants

• Amputee with prosthetic

• Medication for mental health issues

ADA Amendment Act

ADA was amended in 2008…

• ADAAA make it easier for an individual seeking protection under the ADA to establish that he or she has a disability.

• Definition of disability is interpreted BROADLY

• No more extensive analysis of whether an individual’s impairment is a disability

• It is easier for an individual to get ADA coverage under the “regarded as” definition of disability

• Definition of major life activities have been expanded

ADAAA Major Revisions

Employer Friendly1990

EmployeeFriendly2008

• The ADAAA expands the definition of disability and U.S. has seen:

• The number of accommodation requests by employees

• Disability Discrimination Charges

• Lawsuits by employees

ADAAA Impact on Employers

ADA Litigation

• PRIOR to ADAAA: ~17,000 complaints/year

• 2014: ~25,500 complaints 34%

• Prior to ADAAA: ~$54 million in awards to employees

• 2013: $109 million in awards 50%

ADAAA and Employment

• Prohibits discrimination in:

• Hiring, recruitment and job applications

• Advancement and compensation

• Training

• Terminations and layoffs

• Leaves

• All other employment activities

Requires an employer to make reasonable accommodations for an employee with a disability if it would not cause an “undue hardship” on the operation of the employer’s business.

What is a disability under ADA and ADAAA?

1. A physical or mental impairment that substantially limits one or more major life activities

2. A record of such an impairment

3. Being regarded as having such an impairment

ADAAA: A physical or mental impairment that Substantially Limits one or more major life activities

• ADAAA: Substantially limits not meant to be demanding standard…does not have to be severe!

• ADA 2008: substantial limitation meant a significant limitation when compared with the general population, and generally required that the condition be both long-term and severe

• ADAAA: Limitation on ONLY one major life activity constitutes a disability

• ADA 2008: To be substantially limited in the major life activity of working, the individual had to be substantially limited in working, plus one additional major life activity.

• ADA 2008: The original list of "major life activities" was relatively short, and included

• walking, speaking, caring for oneself, performing manual tasks, seeing, hearing, breathing, learning, and working.

• To be substantially limited in the major life activity of working, the individual had to be substantially limited in working, plus one additional major life activity.

ADA: Prior Definition of Major Life Activities

• ADAAA expanded Major Life Activities

• Seeing, hearing, speaking, sleeping, breathing

• Learning, thinking, concentrating, communicating

• Caring for oneself, working, writing, reading

• Manual labor, bending, walking, standing, lifting

• Drinking, chewing, swallowing,

ADAAA: A physical or mental impairment that Substantially Limits one or more major life activities

ADAAA: New definition of Major Life Activity……

• ADAAA: Now includes operation of a major bodily function: immune system, normal cell growth, digestive, bowel, bladder, circulatory, reproductive

IMPORTANT: Individuals NO LONGER need to show how their disability limits them in specific activities

• Hepatitis C: liver function

• IBS: Affects digestion

• Lupus: immune system

• Diabetes: endocrine

ADHD, Learning Disabilities

Learning Disability Case• You hire a new employee in accounting and after a month of orientation, she is not

catching on to the essential job functions and makes mistakes that could cost TGH reimbursement money.

• You counsel her weekly and give her an additional three weeks of training, but her performance does not improve. She never mentions any disability or need for accommodation during meetings with you or during her preplacement assessment in EHS. After three months, you consult with HR and she is terminated for performance.

• TGH receives an EEOC complaint that this employee has a learning disability and was not offered an accommodation.

• What happens?

• Unit Coordinator asks to meet with EHS and his manager to request accommodation for his ADHD. He works three shifts per week on a clinical unit from 9 am to 9pm. He has had 18 tardies in the past 6 months.

• He requests to work 11am to 11pm as he said he can’t take his ADHD meds until 8:30 am as he needs them to last until the end of his shift at 9pm. Therefore, he can’t focus enough to get ready for work and get in by 9am. His manager has tried to accommodate him by allowing him to come in at 9am instead of 7am.

What do you do?

ADHD Case

Sleep Apnea/Narcolepsy

• Co- worker complains he “snores” in his office 3-4 times per week

• Falls asleep at department meetings, not meeting productivity standards

• Sleep studies indicate sleep apnea

• Doesn’t like CPAP

• What does EHS do?

Service Animals for PTSD/Anxiety

• ADA requires service dog to be individually trained to perform tasks of benefit to a disabled individual

• Does not require license or certification but most have some training

• May exclude service animal that poses direct threat to the health and safety of other

• Emotional Support Animals: Not trained to preform tasks

• Requires ESA letter

• Primarily for travel and housing

• Usually not covered under ADA

ADAAA: Disability: A record of impairment that substantially limits one or more major life activities

Discrimination based on history of disability:

ADAAA: Conditions that are episodic or in remission

• IS a disability if it would substantially limit a major life activity when active

• PRIOR to ADAAA.. Most NOT considered disability

Employee with Schizophrenia

• IT employee of 5 years started acting paranoid at work, wearing hoodie and making comments about hearing voices from the computer. Did not theaten anyone. He was sent to EHS and put on administrative leave for mental health reasons.

• Parents called and said he was schizophrenic and every 5-6 years he stops his medications and has exacerbation. He is baker acted and put back on meds and returned to work two months later.

• Manager does not want to take him back as she is scared he will hurt someone.

• What did EHS do?

• One of your RNs has breast cancer and goes out on FMLA followed by a three month medical leave. Her cancer is in remission and she returns to work full time. She is performing to standard and tells you she needs no additional treatment.

• Six months later you have an opening for a clinician and she applies. She and another nurse are equally qualified and both have been in your unit around the same time. You hire the other nurse because you are concerned the other RNs cancer may come back and you need someone who is dependable. You tell her she didn’t get the position because you were concerned for her health.

• The RN sues under ADA for employment discrimination related to a job promotion.

• Under ADA, were you required to hire her for the position?

Job Promotion Denied

Your employee is a PCT and has diabetes. He is new and agreed to work 7pm to 7am during the interview. After working for three weeks, he brings you a note from his doctor stating he needs to work day shift due to his diabetes.

• Is Diabetes a disability under ADA?

• Do you have to accommodate the doctor’s request?

• Should you schedule a meeting with EHS?

PCT with Diabetes

ADAAA: Being regarded as having an impairment that substantially limits one or more major life activities

• Not hiring a person with facial burn for clerical job based on appearance.

• Not hiring a nurse with a history of scoliosis due to fear of a future workers compensation injury

• Employee with psoriasis

NICU Nurse with Psoriasis

• Male NICU nurse asked for ADA accommodation due to his severe outbreak of psoriasis.

• Co-workers stated he flaked everywhere, including in or around the isolates where the neonates were. A few family members complained.

• Meeting in EHS indicated he had not been to physician for evaluation in a few years and was no longer taking prescription meds.

• EHS required derm evaluation and removed from work until flaking stopped and required weekly eval by EHS nurses for 1 month.

• Is this a safety issue?

What is NOT a disability under ADA?

• Typically, conditions that last for only a few days or weeks and are not substantially limiting with no long-term effect on an individual's health (i.e., colds, influenza, broken bones and sprains) are not considered disabilities under the Act.

• The ADA further excludes individuals currently engaging in the illegal use of drugs.

• Alcoholism is covered under ADA

A qualified person with a disability MUST be able to perform the essential functions of a

job with or without reasonable accommodations.

• In determining whether a job function is essential, the Equal Employment Opportunity Commission looks at these factors:

• the employer’s AND employee’s assessment of which functions are essential

• the opinion of other employees who actually hold that position

• The time spent performing the function

• the consequences of not performing the function

• whether other employees are available to perform the function

• the degree of expertise or skill required to perform the function.

What is an Essential Job Function?

• You hire an employee for a primarily clerical position. After two weeks you call EHS and state that EHS didn’t tell you that this employee had lifting restrictions of 10 pounds and you would not have hired this person if you knew. You want to terminate the person now.

• Once every few weeks, each clerk has to pick up and deliver 10 boxes of copy paper and put them on shelves. Each box weighs around 20 pounds. This new employee said she was not told she had to lift as part of the job.

• Is this an essential job function?

• What if you had told the person during the interview and she was the most qualified?

Marginal or Essential Job Duties

• Failure to engage in the interactive process EQUALS failure to accommodate

• EMPLOYER MUST determine WHAT the employee needs and WHY the employee needs accommodation

• Obligation to engage in “interactive process” occurs when employer has notice of the need for accommodation

Interactive Process Meeting

Employer MUST initiate the IP meeting

• Employee: not required to say ADA, accommodation or request in writing

• Employee could just say his/her impairment is affecting job performance

• Word “gets around” to manager that employee has disability affecting job performance

Employee Responsibility to Disclose Disability

Interactive Process Meeting

• Reasonable Accommodations MUST be managed through an Interactive Process Meeting

• Ensure essential job functions of position are up to date on job description

• Review job limitations with employee and ask employee how you could provide reasonable accommodation

• Identify and document proposed reasonable accommodations

• Document reasons why employee can or cannot be accommodated

• Provide employee in writing: Summary of Meeting and EHS/HR response/decision

• Do Not seek information about an employee’s health. Refer to EHS/HR

• Do NOT ignore concerns if health issues are impacting performance or become a safety issue.

• Meet with employee to discuss performance concerns ONLY!

• Set up Interactive Process Meeting with EHS/HR

Manager Responsibility

• 58 year old employee of 29 years. Developed MS 15 years ago and it is gradually progressing.

• Fell at work using cane six months ago and fell again reaching for boxes last week using her walker.

• Her job requires packing equipment to send out for repairs and inventory.

• Due to her walker she cannot retrieve equipment behind sterile “red” line.

• She is requesting accommodation until she retires in 11 months so she can take money out of her pension at 59 ½ without a penalty to pay for her medical insurance and living expenses.

• In two months, her job will be restructured and require her to go to the ORs and pick up equipment with a cart. Mgr said this task is time sensitive.

• She is good employee with good attendance and no behavior problems. Mgr feels other are helping her too much as they feel sorry for her.

• Requested Interactive Process meeting with EHS

SPD Multiple Sclerosis Case Materials Mgt Coordinator

• But, how are we going to get the work done?

• We won’t meet our productivity measures!

• I’m afraid she will fall again!

• This isn’t fair!!!

• Ask HR to look at early retirement package

• Accommodate until job is restructured

• Another Interactive Process Meeting after job restructured

Reasonable Accommodations

• Voice Recognition Software

• Visual aids for computer

• Hearing enhanced phones

• Reassignment of positions, job duties

• Modifying work schedules

• Modifying training

• Acquiring or modifying equipment

Undue Hardship

• Analysis of cost of accommodation

• Financial resources of your organization

• Accommodation poses direct threat to others

I agree to comply with all prescribed treatment (i.e. medications, therapy) by my healthcare providers in which non-compliance may affect my ability to safely perform my job duties and/or would be a safety risk to myself, co-workers, patients, or others.

Employment Agreement

Please read and initial each statement. Sign below as acknowledgement of information provided:

___ I understand that my employment at Tampa General Hospital is contingent upon this pre-placement assessment. I

understand that Employee Health Services will give me 2 weeks to provide a medical clearance and/or medical

records for any physical or mental condition that may affect my ability to perform the essential functions of this

job with or without reasonable accommodation. ___ The essential functions and physical requirements of the job I have been offered have been explained to me prior

to this pre-placement assessment. I am able to perform the essential functions of this job with or without

reasonable accommodations.

• Your employee has epilepsy and is non compliant with taking his seizure meds. He has been sent to EHS numerous times after suffering seizures at work and was instructed to take his medication as prescribed.

• He has a seizure at work and falls off a small ledge. His co workers lift him to safety and he injuries two of them as he continues to seize. One incurs a fracture.

• He is taken to the ED and seizure med level is 0. His Neurologist states he has not kept his last three appts. He is terminated from employment and sues under the EEOC for disability discrimination.

• What is the outcome of this case?

Epilepsy and Safety Concern

• An employee with bipolar disorder threatens other coworkers with physical harm and frequently uses profanity at work during her frequent outbursts.

• She has been evaluated by EHS and given time off for medication adjustments, but her erratic behavior continues and co-workers are concerned for their safety. Patients have complained about this employee’s attitude and outbursts in front of them.

• You terminate the employee and she sues under ADA for not providing reasonable accommodation for her disability.

• What happens?

Mental Illness…Direct Harm to Other

Employee without arms

• You hire an employee without arms to work in the Rehab Office. His primary job duties will be answering phones and assisting discharged rehab patients with follow-up appointments and therapies. He tells you he answers his phone with his feet and shows Employee Health how he does it.

• He works first shift and other employees work at his work station on second shift. After one week, you receive a phone call that the other employees don’t want to use the phone after he has his “dirty” feet all over it. They say he walks around the office barefoot.

• What do you do?

Hiring Persons with Disabilities

• Manager is free to hire the most qualified applicant and to make decisions based on reasons unrelated to disabilities

• Cannot ask about a disability or nature or severity of disability prior to job offer.

• You can ask about the ability to perform a specific job function

• Manager MUST review essential job functions during interview, pre job offer.

• Use Job Analysis form!!!

Don’t Ask during a job interview……

• Have you ever had a workers comp injury or hurt yourself on the job?

• Why are you in a wheelchair?

• You can’t do this job with one arm.

• What’s your prognosis?

• Are you an alcoholic or drug addict?

• Do you have a disability that would interfere with the job?

• That rash on your face may scare patients.

Visual Impairment

You are the IT manager and are interviewing a candidate for a job as a software developer. He currently has worked as a software developer for another hospital for 10 years performing the same duties and you received glowing reviews. He tells you he has a visual impairment and he has uncorrected vision related to a medical condition of 20/400 but he compensates by using visual aides and states he will have no problem performing his job.

You state: How much is it going to cost me to provide you the visual aides?

• If he is the best qualified applicant, does the manager need to hire him?

• Can the manager ask the above question?

• If the applicant is not hired and was the most qualified, can he sue under ADA?

After the offer of employment, EHS can ask…….

Restrictions and Accommodations Section

Yes NoDo you currently have ANY physical or psychological limitations and/or restrictions? (i.e. lifting, hearing, visual, walking, bending, pushing/pulling, sitting, concentration, shift work, etc)?

If yes, please answer the following:

Restrictions are temporary Restrictions are permanent N/A

Injury or illness that caused need for restrictions: ___________________________________________

Describe your restrictions or limitations:___________________________________________________

___________________________________________________________________________________

Will these restrictions or limitations interfere with you performing your essential job functions at TGH?

Yes No If yes, why:____________________________________________________________ Yes No Do you need any accommodations to enable you to perform the essential functions of the job for

which you were hired?

If yes, describe: _____________________________________________________________________

Preplacement Assessment (Post Hire) form

Agility Disability Codes:

Agility Accommodation Codes:

Employment Clearance

Employee Name: __________________________________________

No disability; no accommodations needed.

Documented disability; no accommodations needed or requested. Employed without need for

accommodations.

Documented disability; documented accommodations. Employed with accommodations to perform

essential job functions. (Evaluated by RN/ARNP)

Documented disability; unable to perform essential job functions with or without reasonable

accommodations. (Evaluated by RN/ARNP).

Explanation:

Check all that apply below.

Agility Disability Codes:

Disability-Amputation/Missing Limb Disability-N95 Fail Fit Test

Disability-Chemical Sensitivity Disability-Neuro/Head Injury

Disability-Chronic Illness Disability-Paraplegic/Quadriplegic

Disability-Communicable Disease Disability-Parkinson’s

Disability-Disfigurement/Cosmetic Disability-PTSD

Disability-Hearing Disability-Respiratory

Disability-Learning Disability Disability-Sickle Cell

Disability-Mental Health Disability-Skin/Burn

Disability-Multiple Sclerosis Disability-Transplant/Organ

Disability-Musculoskeletal Disability-Vision

Disability-Myasthenia Gravis Disability-Voice/Speaking

Agility Accommodation Codes:

ACC-Breaks: Meals/Other ACC-Parking Accommodations

ACC-Education/Retraining ACC-Schedule Change

ACC-Equipment-Other ACC-Service Animal

ACC-Ergonomic Equipment ACC-UNABLE TO ACCOMMODATE

ACC-Mask-Charcoal ACC-Vinyl Gloves

ACC-Mask-N95 Substitute ACC-Vision Software/Equipment

ACC-Mask-No Pts Requiring N95 ACC-Wheelchair/Scooter

ACC-Mask-PAPR Respirator ACC-Work Practice Changes

ACC-No Accommodation Required

Chronic Disease• An RN case manager in the ED was diagnosed with Parkinson's Disease one year

ago. She has difficulty typing due to hand shaking. She is required to type at least 4 hours of her 8 hour work day. Her productivity has decreased 50% and you go to HR to request termination and they refer you to EHS.

• Her daughter works for an ADA attorney and she is on the state ParkinsonsDisease board of directors. Many of the ER doctors went to a award ceremony she received for PD research.

• She is 66 and states she wants to work until she is 70.

• What do you do?

• Your employee asks to speak with you and tells you he has a drinking problem and would like to enter a 30 day rehab center. He has never come to work impaired and has a minor attendance and tardiness issue.

• You tell the employee that you cannot accommodate a 30 day absence.

• Is alcoholism covered by ADA? By FMLA?

• Do you have to allow the rehabilitation and keep his position?

Alcoholism

• Your employee has Rheumatoid Arthritis and goes on FMLA followed by a 4 week Medical leave due to a severe flare up. She is a marginal employee who is a “pot stirrer” but no discipline documented in her chart.

• You post her position when her FMLA expires and start interviewing. She is cleared to return to work before you offer the position to anyone. You tell her she cannot return to your unit and you would like to hire someone who is a better fit for the unit.

• Do you have to take her back into her previous position?

• What if you had extended the offer to someone else?

Returning to Work after FMLA

• You hired a surgical tech for weekends who has 10 years of experience. You need experienced CSTs on the weekends as they have to be able to work a variety of cases, including neuro cases with fine instrumentation. After a few years, your weekend staff approach you and tell you he seems to be having difficulty seeing and finding the correct instruments in the neuro cases. You send him to EHS.

• He tells the EHS nurse that he has diabetes and has had two laser surgeries. His corrected vision of 20/70 in the left eye and 20/200 in the right eye. He said he cannot work during the week. He has not had an eye exam in two years.

• What do you do?

CST-Poor Vision

Employee Health can be an advocate for disabled employees and provide advice for the small number of

employees who abuse the law

Remind the management team