1 The Americans with Disabilities Act How The ADA Protects Employees Who Are Not Disabled John J. Sarno, Esq. Employers Association of New Jersey

2 EEOC guidance issued on May 23, 2007 Issued by Office of Legal Counsel and provides guidance to EEOC offices on how to detect unlawful discrimination under federal EEO law against workers with caregiving responsibilities.

3 Family Medical Leave Act (FMLA) provides 12 weeks leave of absence for caregiving responsibilities Applies to eligible employees who are employed by an employer with 50 or more employees. Title VII, Civil Rights Act of 1964 Americans with Disabilities Act (ADA) Applies to employers with 15 or more employees.

4 NJ Law Against Discrimination (NJLAD) Applies to every employer regardless of size. EEOC guidance does not apply to NJLAD, but NJ Division on Civil Rights and NJ State Courts often follow EEOC guidance.

5 Caregiving Responsibilities can relate to newborns and family members who are disabled EEOC states that caregiving responsibilities disproportionately affect working women generally, but is more pronounced among women of color, particularly African-American women.

6 Americans with Disabilities Act Discrimination includes excluding or otherwise denying equal jobs or benefits to an employee because the individual has a relationship or an association with someone who is disabled. Employer cannot treat an employee less favorably based on an assumption of the employee’s ability to perform job duties while also providing care to a relative or other individual with a disability.

7 Census Bureau Report 54 million Americans declared themselves as having a disability 24 million people describe their disability as severe 1 in 10 Americans experience some disability from a diagnosable mental illness in the course of a year

8 “Disability means a physical or mental impairment that substantially limits one or more major life activities.

9 Physical impairment is any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting a body system (i.e. neurological, musculoskeletal, respiratory, cardiovascular, etc.) Mental impairment is any mental or psychological disorder (i.e. disorders identified in the DSM-IV)

10 Substantial Impairment Severe enough to prevent individual from performing a major life activity that the average person in the general population can perform Factors to Consider: The duration or expected duration The nature and severity of impairment Permanent or long-term impact The word “substantial” precludes impairments that interfere only in a minor way with the performance of major life activities.

11 Permitting the use of accrued paid leave or unpaid leave is a form of reasonable accommodation Obtaining treatment Recuperation The ADA requires employers to grant employees with disabilities time off under certain circumstances.

12 Does the ADA require time off to care for a disabled family member ?

13 Like Title VII, the ADA requires equal treatment Denial of caregiving leave should be done for non-discriminatory reasons. Have leaves been granted for other reasons?

14 “Disability” also means “a record of such impairment” or “being regarded as having such an impairment” Examples: -a person with a record of treatment for a disability -a person has some physical limitations that may not be disabling but is perceived by others as disabled i.e.: person who returns from a leave following a workplace injury and is told he is too impaired to work

15 Back to Work Issues Medical conditions are often exaggerated Employers provide incomplete information to treating physicians Treating physicians lack understanding of a job Employees let things fall by the wayside, fail to manage the process

16 Whether employer “regards a person” as having a substantially limiting impairment depends on facts and circumstances. Referrals to EAP Gazaway v. Makita USA – After employee is involved in fatal traffic accident, he begins to act erratically and sullenly at work. Supervisor’s suggestion that employee seek EAP counseling is not “regarding” him as having disability. Holihan v. Lucky Stores – Hostile and abusive employee is repeatedly counseled, placed on medical leave with organic Mental Syndrome and treated through EAP. While on leave, employee receives real estate license and pursues real estate career. Leave is extended twice, supported by medical certifications. Third request to extend leave is denied and employee is let go. By counseling employee, referral to EAP and obtaining medical certification, employer may have “regarded” him as disabled.

17 Do Not: Exaggerate physical limitation Fail to contact physicians Fail to Review medical records Rely solely on what employee tells you about limitations

18 Do: Respect medical privacy Keep employee informed Act in good faith at all times Rely on best medical information available

19 Any employee can ask for a reasonable accommodation. Employer can not retaliate.

20 Disabling Effects of Prescription Drugs Can Require Reasonable Accommodations.

21 All employees are entitled to privacy of medical records Separate files Need to know Privacy

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