ADA Amendments Act of 2008and Overview of

ADA Reasonable Accommodations Requirements

June 5, 2009CORT First Friday Webinar

Michael R. SmalzSenior Statewide AttorneyOhio State Legal Services Assn.

555 Buttles AvenueColumbus, OH 43215-1137

PH: 614-221-7201FX: 614-221-7625

Jane P. PerryStaff Attorney

Ohio Legal Rights Service50 West Broad Street, Suite 1400

Columbus, OH 43215-5923PH: 614-466-7264FX: 614-644-1888

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History and Legal Authority• ADA Amendments Act of 2008, Pub.L. 110-325, 122 Stat. 3555 et seq.

• Signed by President Bush on September 25, 2008.

• Effective on January 1, 2009. Probably not retroactive, but see unpublished opinion in Jenkins v. National Board of Medical Examiners, 6th Cir., No. 08-5371, 2/11/09 ("no injustice would result from applying the amended law" to pre-January 1, 2009 reasonable accommodation request).

• Primarily amends 40 U.S.C.A. §12101 (findings and purpose); 42 U.S.C.A. §12102 (definitions); 42 U.S.C.A. §12113 (defenses); 42 U.S.C.A. §12201 (construction); and 42 U.S.C.A. §12205a (rule of construction regarding regulatory authority).

• Non-codified findings and purposes enumerated in Section 2 of the ADAAA.

• Changes the scope of the definition of disability in Title I (employment), Title II (public accommodations), and Title III (government programs or services) discrimination cases.

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Key Findings In ADAAA, Section 2(Non-codified)

• In enacting the Americans With Disabilities Act of 1990 (ADA), Congress intended that the Act "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" and provide broad coverage;

• In enacting the ADA, Congress recognized that physical and mental disabilities in no way diminish a person's right to fully participate in all aspects of society, but that people with physical or mental disabilities are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers;

• While Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applauded the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled;

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Key Findings (continued)• The holdings of the Supreme Court in Sutton v. United Airlines, Inc., 527

U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect;

• The holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) further narrowed the broad scope of protection intended to be afforded by the ADA;

• As a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities;

• In particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams 534 U.S. 184 (2002), interpreted the term "substantially limits" to require a greater degree of limitation then was intended by Congress; and

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Key Findings (cont.)

• Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the term "substantially limits" as "significantly restricted" are inconsistent with congressional intent, by expressing too high a standard.

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Purposes(ADAA, Section 2, Non-Codified)

• To carry out the ADA's objectives of providing "a clear and comprehensive national mandate for the elimination of discrimination" and "clear, strong, consistent, and enforceable standards addressing discrimination" by reinstating a broad scope of protection to be available under the ADA;

• To reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;

• To reject the Supreme Court's reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;

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Purposes (continued)

• To reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms "substantially" and "major" in the definition of disability under the ADA "need to be interpreted strictly to create a demanding standard for qualifying as disabled," and that to be substantially limited in performing a major life activity under the ADA "and individual must have an impairment that prevents or severely restricts the individual from doing activities that are of essential importance to most people's daily lives;

• To convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for "substantially limits", and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis;

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Purposes (cont.)

• To express Congress' expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term "substantially limits" as "significantly restricted" to be consistent with this Act, including the amendments made by this Act.

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Definition of Disability

(1) DISABILITY– The term "disability" means, with respect to an individual —

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment (as described in paragraph (3)).

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Definition of Disability (cont.)

This general definition of disability is essentially unchanged from the ADA of 1990, except for the third prong. However, the U.S. Supreme Court had narrowly construed this definition in a way that led the courts to exclude a wide range of individuals from coverage, including many individuals with diabetes, epilepsy, cancer, muscular dystrophy, and artificial limbs.

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Definition of Disability (cont.)

As Professor Ruth Colker of the OSU Moritz College of Law observed,

The scope of the reasonable accommodation obligation has been narrowed far beyond the statutory language, and the categories of people who can bring claims under the statute has been confined beyond the intentions of Congress or the EEOC. Moreover, conservative newspapers have fueled this backlash by exaggerating the scope of success for claimants under the ADA.

─Ruth Colker, American Law in the Age of Hypercapitalism: The Worker, the Family and the State, 98 (1998).

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Mitigating Measures

• In Sutton v. United Air Lines, the Supreme Court narrowed the group of people covered by the ADA by ruling that mitigating measures, such as medication, equipment, devices, or assistive technology, must be taken in account in determining whether a person was substantially limited in a major life activity. Thus, if medication or devices enable the person with an impairment to function well, that person was held by the courts not to have a disability under the ADA–even if the impairment was the basis for the discrimination.

• The ADAAA provides that the ameliorative effects of mitigating measures shall not be considered in determining whether an individual has an impairment that substantially limits a major life activity. 42 U.S.C.A. §12102(4)(E)(i).

• An exception is made for "ordinary eyeglasses or contact lenses," which may be taken into account. 42 U.S.C.A. §12102(4)(E)(ii). Therefore, a person with a visual impairment that is corrected by eyeglasses or contact lenses does not have a visual impairment that limits a major life activity.

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Mitigating Measures (continued)

• Notwithstanding the above provision, a covered entity may not use qualification standards, employment tests or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria if shown to be job-related and consistent with business necessity. 42 U.S.C.A. §12112.

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The "Major Life Activity" Requirements

• In Williams, the Supreme Court ruled that a "major life activity" must be an activity that is of "central importance to most people's daily lives." 534 U.S. 184, 197.

• The ADAAA includes a non-exhaustive list of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. 42 U.S.C.A. §12102(2)(A).

• Major life activities also include the operation of major bodily functions, such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 42 U.S.C.A. §12102(2)(B).

• An impairment that substantially limits a major life activity need not limit other major life activities in order to be considered a disability (contrary to some court decisions under the former ADA). 42 U.S.C.A. §12102(4)(C).

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Episodic Conditions orConditions in Remission

• Some courts have held that episodic or intermittent requirements, such as epilepsy or PTSD, were not covered under the ADA.

• The ADAAA clarifies that impairments which are episodic or in remission are considered disabilities if the impairment would substantially limit a major life activity when the condition is considered in its active state. 42 U.S.C.A. §12102(4)(D).

• Query: what about conditions that may be in remission for a long time, e.g., cancer or a seizure disorder with very infrequent seizures?

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Regarded as Having a Disability

• Third prong of the definition of disability in the ADA/ADAAA.

• In Sutton, the Supreme Court set a very high standard of proof—essentially requiring the individual to prove that the covered entity that engaged in the discrimination also believed that many other employers would have discriminated against that individual as well. Lower courts had also required individuals to show what was in a covered entity's head in order to establish coverage under the "regarded as" prong.

• New liberal test under the ADAAA—An individual can establish coverage under the "regarded as" prong by showing that he or she was subject to a prohibited action (discrimination) based on an actual or perceived impairment, regardless of whether the impairment limits or is perceived to limit a major life activity. 42 U.S.C.A. §12102(3)(A).

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Regarded as Having a Disability (cont.)

• Reinstates the approach of the U.S. Supreme Court in the Rehabilitation Act of 1973 case of School Board of Nassau County v. Arline 480 U.S. 273 (1987); one can look to Rehabilitation Act cases defining "handicap" in interpreting this amendment to the ADA.

• Therefore, anyone with a perceived significant physical or mental impairment is likely to be protected against affirmative acts of discrimination by a covered entity under the ADAAA. (See below for different treatment of "reasonable accommodation" claims.)

• Transitory and minor impairments are excluded from coverage under the "regarded as" prong. 42 U.S.C.A. §12102(3)(B).

• A transitory impairment is an impairment with an actual or expected duration of six months or less. 42 U.S.C.A. §12102(3)(B).

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Reasonable Accommodations and Modifications

• No reasonable accommodation or reasonable modification of the covered entity's policies, practices, or procedures is required in "regarded as" disability cases. 42 U.S.C.A. §12201(h).

• No change is made to the ADA's "fundamental alteration" defense–Reasonable modifications in policies, practices, or procedures shall be required, unless an entity can demonstrate that making such modifications would "fundamentally alter" the nature of the goods, services, facilities, privileges, advantages, or accommodations involved. 42 U.S.C.A. §12201(f).

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Regulatory Authority• In Sutton, the Supreme Court held that "no agency has been delegated

authority to interpret the term 'disability'" through regulations. 527 U.S. at 479.

• The ADAAA grants the EEOC, the Attorney General, and the Secretary of General Transportation authority to issue regulations interpreting the definition of disability under the ADA. 42 U.S.C.A. §12205a.

• The Bush Administration's proposed regulations were withdrawn from OMB review on January 21, 2009, after the four EEOC commissioners deadlocked on approving set of proposed rules.

• April 4, 2009 Statement of EEOC Acting Vice Chair—Staff draft notice of proposed rulemaking "will be finished sometime soon," but there is no "real clear time frame" for completing entire rulemaking process.

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Miscellaneous Provisions

• Nothing in the ADAAA alters the standards for determining eligibility under State worker's compensation laws or under State and Federal disability benefit programs. 42 U.S.C.A. §12201(e). The ADAAA changes should have no bearing on eligibility determinations for Social Security, SSI, or Veterans' disability benefits.

• Nothing in the ADAAA shall provide the 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. 42 U.S.C.A. §12201(g). Therefore, an employer or other covered entity may discriminate in favor of disabled persons without violating the ADA.

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Impact on Other Disability Discrimination Laws

• The Rehabilitation Act of 1973 is amended to give the definitions of "disability" and "individual with a disability" in the Rehabilitation Act the same meaning as in the ADAAA. 29 U.S.C.A. §705(9)(B) and 705(20)(B).

• There are no changes to the Fair Housing Act, but there may be a spillover effect. Remember that the ADA covers rental offices and other business offices of landlords and realtors.

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Overview of Reasonable Accommodations

Title I, ADA 42 U.S.C. §12101 et seq.; 29 C.F.R. 1630.1 et seq.

• Requires employers to provide reasonable accommodations to applicants and employees with disabilities.

Accommodations may be needed in:

• The application process• Work environment• Employee benefits

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Definition of"Reasonable" Accommodation

• One that does not cause "undue hardship," that is, significant difficulty or expense for the employer, considering the number of other employees, the employer's overall financial resources, and the impact on company operations.

• One that does not involve relieving the employee of one of the essential functions of his/her position.

• One that is effective in meeting the person's need(s).

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Applicants or Employees Must Request a Reasonable

AccommodationUnless the Need is Obvious

• No magic words are needed, ie, individual does not have to say "I am requesting a reasonable accommodation for my disability."

• Request does not have to be in writing, but it is best to document.

• "I need time off because I'm depressed and stressed" – on notice of request for accommodation.

• "I need my schedule adjusted because of my medications."

• A family member, friend or doctor can also make a request for accommodation on the person's behalf.

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Employees: The "Interactive Process"• Once an accommodation is requested, the employer and employee

must engage in an interactive process.

• Discuss what the person needs, identify potential accommodations.

• The employer can ask for documentation of the disability but not the person's entire medical history – requested documents must be related to the disabling condition.

• Can ask employee to sign a limited release of medical information so that employer can contact employee's doctor with questions about the condition and the need for accommodations.

• Can ask an employee to go to a health care professional of the employer's choice if the employee's information is not sufficient in the company's view, but the employer should pay.

• Employer should respond promptly - accommodation delayed is accommodation denied.

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General Examples ofReasonable Accommodations

• Making buildings and facilities accessible to applicants and employees - includes employee benefits such as cafeterias, lounges, gyms.

• Making applications as well as needed workplace information and training programs accessible.

• Modifying equipment or work spaces - adaptive equipment.

• Modifying work schedules.

• Modifying work place policies.

• If there is more than one possible accommodation, the employer can choose the less expensive one -- as long as it is effective.

• An employee is not required to accept an accommodation that he or she does not want -- BUT -- refusing a reasonable accommodation may make the employee not qualified to remain on the job.

• Requesting a change in supervisor is not usually a "reasonable" accommodation.

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Job Restructuring as aReasonable Accommodation

• Restructuring (reallocating or eliminating) "marginal" job functions is reasonable; restructuring "essential" job functions is not.

• Employer position statements or job descriptions often identify the "essential" functions of the job.

• The employer's designation of "essential" functions is not always definitive.

• The day to day practice in the work place and the ways in which employees allocate job functions among themselves may differ from the employer's position statement.

• It may be possible to restructure some job functions for an employee with a disability based on the way the functions are actually performed in the workplace as opposed to the employer's position statement.

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Reassignment to Vacant Position as a Reasonable Accommodation

• There must be an open position.

• The employer should help the employee identify an open position or positions.

• The job must be equivalent in pay, benefits and status to former job.

• If there is no equivalent job open, the employer should transfer the employee to a position that is closest to the employee's current position in pay, benefits, etc.

• The employee must meet the qualifications for the position.

• The reassignment cannot violate seniority rules.

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Excess Leave as aReasonable Accommodation

• It may be reasonable for an employer to allow additional leave for an employee with a disability when allowed leave has been exhausted, if:

• The amount of excess leave requested is not unreasonable given the number of employees available who could "cover."

• The employee or employee's doctor can say that the employee will be able to return to work within a certain period of time.

• "No fault" absence policies generally violate the ADA because they do not account for reasonable accommodations.

• FMLA/ADA: It may sometimes be reasonable for an employer to allow an employee with a disability to take leave in addition to the 12 weeks of allowed FMLA leave.

• It is not reasonable to expect an employer to hold a job open indefinitely.

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Discipline and Performance Issues

• An employer can discipline an employee with a disability for violating workplace conduct standards so long as the standards are job related and applied equally to all employees.

• An employer can discipline an employee with a disability for poor performance if the employer is unaware of the disability and the employee has not requested reasonable accommodations.

• If an employee with a disability requests accommodations after a poor performance review, the employer should then provide accommodations but does not have to rescind the poor performance review.

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Disseminating Disability-Related Information in the Workplace

is Prohibited under ADA

• Must be kept confidential, in a separate file.

• Can be shared only those who have a need to know.

• Co-workers should not be told that an employee is getting an accommodation.

• If asked, managers should say that they do not discuss one employee's situation with others in order to protect the privacy of all employees, but assure co-workers that the employee in question is meeting all work requirements.

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Resources

• OLRS - olrs.ohio.gov

• EEOC - www.eeoc.gov - excellent website, lots of publications:

• Job Accommodation Network, JAN: http://janweb.icdi.wvu.edu/

• ADA Ohio: http://www.ada-ohio.org/

• ADA Home Page - ada.gov

• DisabilityInfo.gov

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