WCLA MCLE Recent Changes in the American With Disabilities Act & How They Affect Workers Compensation Guest Speakers: Laurie Elkin & Deborah Hamilton, US EEOC Thursday June 18, 2009 James R. Thompson Center Auditorium in Chicago, IL 12:00 noon to 1:00 pm 1 Hour General MCLE Credit

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The ADA Amendments of 2008 for Workers Comp Lawyers Presented by Laurie Elkin & Deborah Hamilton June 18, 2009

Introduction to the EEOC Process What we do and how we do it

Laws We Enforce Title VII of the Civil Rights Act of 1964 “Title VII” The Equal Pay Act “EPA” The Americans with Disabilities Act “ADA” The Age Discrimination in Employment Act “ADEA”

Types of Discrimination Title VII Failure to hire, promote, train; differences in pay, benefits or discipline; termination, harassment / hostile working environment due to: Race, Color, National Origin, Religion or Sex

Types of Discrimination ADA The ADA prohibits discrimination in the same ways as Title VII but protects individuals with disabilities. Prohibits most medical inquiries prior to a job offer being made. Requires that disabled applicants and employees be provided with reasonable accommodations where doing so would not cause an undue hardship on the employer.

Types of Discrimination ADEA The ADEA prohibits discrimination in the same ways as Title VII, but protects workers (and applicants) over the age of 40. Special concerns are RIFs, retirement benefits, and early retirement packages. Requires specific disclosures in order to obtain legally binding releases of these claims. (OWBPA)

The EEOC Process Mediation Individual* files a Charge Resolution Investigation Withdrawal / Closure / Right-to-sue letter No-cause finding Settlement Cause finding Conciliation Resolution Conciliation failure EEOC LITIGATION Referral to private attorney

EEOC at a Glance EEOC has been receiving an average of almost 90,000 Charges per year. “Cause” findings are made on only about 5% of all Charges. Approximately 1 in 10 “Cause” cases are litigated by the EEOC.

EEOC Investigations YOU HAVE TO TELL THE TRUTH 18 U.S.C. §1001 provides that any person who makes a false statement or submission or who conceals or “covers up” any material fact in a matter before the EEOC may be subject to criminal penalties including imprisonment of up to five years.

The ADA Amendments of 2008 What is new?

ADA Amendments Act of 2008 Shift focus of inquiry from whether an individual is a “qualified individual with a disability” to whether discrimination occurred. Amendments emphasize the “broad coverage of individuals.”

Who is Disabled? Under the ADA, the term “disability” means: –A physical or mental impairment that substantially limits a major life activity; –A record of such an impairment; –Being “regarded as” having such an impairment 29 C.F.R. Part (g)

Changes to the Definition of “Disability” The ADA Amendments retain the three- prong definition of “disability” but expands meaning of the terms: – Major Life Activities –Substantially Limits –Regarded As

“Major Life Activities” Section 3 of ADAAA broadens the scope of Major Life Activities to include: –caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working; and –“the operation of a major bodily function,” not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions

“Substantially Limits” Mitigating measures other than ordinary eyeglasses or contact lenses are not to be considered in whether an individual has a disability. –Sutton v. United Airlines, Inc. 527 U.S. 471 (1999) rejected. Section 3(4)(D) of ADAAA, provides that impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active. Comparison to “Most People” means a comparison to general population, not to those similarly situated.

“Substantially Limits” Cont’d. Section 2(b)(4) of ADAAA overturns Toyota Motor Mfg., Ky. V. Williams, 534 U.S. 124 (2002) which created a demanding standard for qualifying as disabled that required that the impairment limit the individual from doing activities that are of central importance to most people’s daily lives.

“Regarded as” Persons who have an actual or perceived physical or mental impairment need not show the impairment substantially limited any major life activity. This prong is of particular importance for those employees on worker’s compensation leave. Much less burdensome means of proving coverage under the ADA.

Is ADAAA retroactive? Congress specified the effective date of ADAAA as January 1, Seventh Circuit in Kiesewetter v. Caterpillar Inc., 295 Fed. Appx. 850 (7 th Cir.2008) upheld the January 1, 2009 date and chose to “use the laws and interpretations that were in force when the complained-of acts occurred.” Ninth Circuit in Rohr v. Salt River Project Agric. Imp. and Power Dist., No , 2009 WL (9 th Cir. Feb. 13, 2009) declined to decide whether the ADAAA applies retroactively.

The ADA and Workers’ Compensation

ADA Pitfalls to Avoid in the Worker’s Compensation Process When evaluating an employee who is injured at work, employers must consider both worker’s compensation obligations and the ADA. –Employers whose ADA and worker’s comp processes are completely separate are likely to run into problems. Worker’s compensation laws may use different standards from the ADA to determine whether an employee is disabled. –An employee who is totally disabled for worker’s comp purposes may be entitled to able to return to work with an accommodation under the ADA.

For Plaintiffs’ Lawyers Communications with you may constitute part of the interactive process required under the ADA. Consider the impact of workers’ compensation discovery responses on ADA claims. Evaluate the scope of the release that an employer proposes in connection with any worker’s comp settlement.

For Defense Lawyers Worker’s compensation leave is not a substitute for appropriate accommodations under the ADA. An employer may not require an employee with a disability to obtain a full-duty release prior to returning to work. Prior to terminating any employee on worker’s compensation leave, an employer must consider whether that employee can return to work with an accommodation.

Thank you for your attention today.