1. The Americans With Disabilities Act (Title I - Employment)
November 4, 2015

2. The Americans With Disabilities Act
The Americans with Disabilities Act (the “ADA”) is the primary federal law designed to eradicate discrimination against physically and mentally disabled individuals.

3. The Americans With Disabilities Act
The ADA consists of four parts:
Title I covers public and private employment.
Title II covers activities of state and local governments, including public transit.
Title III covers places of public accommodation and other commercial facilities.
Title IV covers telecommunications services.

4. ADA vs. Section 504
Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of handicap by the federal government, federal contractors, and by recipients of federal financial assistance.
Many of the provisions contained in the ADA are based on Section 504 and its implementing regulations.
Accordingly, if an employer is receiving federal financial assistance and is in compliance with Section 504, the employer is probably in compliance with the ADA requirements affecting employment, except in those areas where the ADA contains additional requirements.

5. Scope Of Title I The ADA:
- Applies to all employers, including federal, state, and local government bodies, employing 15 or more employees.
- Protects any “qualified individual with a disability,” meaning an individual with a disability who, with or without reasonable accommodation, can perform the “essential functions” of the job in question.

6. Title I: Prohibited Employer Conduct
Generally, employers may not discriminate against qualified disabled individuals with regard to:
Job application procedures;
Hiring;
Advancement, or discharge of employees;
Employee compensation;
Job training; and
Other terms or conditions, and privileges of employment.
Courts also recognize a harassment cause of action under the ADA.

7. Title I: Prohibited Employer Conduct (cont.)
In addition, the ADA prohibits:
Segregating or classifying applicants or employees in a way that adversely impacts the opportunities of disabled persons;
Participating in contractual or other relationships that have the effect of discrimination against qualified disabled applicants or employees; and
Discriminating against a nondisabled individual because the individual has a relationship or association with a disabled person.

8. “Disability” Under the ADA
An individual has a “disability” within the meaning of the ADA when he or she:
Has a physical or mental impairment that substantially limits one or more of the individual’s major life activities;
Has a record of such an impairment; or
Is regarded as having such an impairment.

9. “Disability” Under the ADA (cont.)
The definition of “disability” must be considered in favor of broad coverage of individuals.

10. Disability: Impairment
An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active (e.g. cancer, diabetes, epilepsy, etc.).

11. Disability: Impairment (cont.)
The determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures such as:
medication, medical supplies, equipment, or appliances, low- vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;
use of assistive technology;
reasonable accommodations or auxiliary aids or services; or
learned behavioral or adaptive neurological modifications.

12. Disability: Impairment (cont.)
An individual cannot be regarded as having an impairment if his/her impairment is transitory and minor in nature.
Generally, a transitory impairment is an impairment with an actual or expected duration of six months or less.
Examples: A broken arm, the flu, etc.

13. Disability: Major Life Activities
Major life activities include functions such as:
Caring for oneself
Performing manual tasks
Seeing
Hearing
Eating
Sleeping
Walking
Standing
Lifting
Bending
Speaking
Breathing
Learning
Reading
Concentrating
Thinking
Communicating
Working

14. Other Major Life Activities
Major life activities also include operations of a bodily function, including:
Functioning of the immune system;
Normal cell growth;
Digestive;
Bladder;
Neurological;
Brain;
Respiratory;
Circulatory;
Endocrine; and
Reproductive functions.

15. Essential Functions Of A Job
To be covered under the ADA, an employee also must show that, notwithstanding the disability, he or she can perform the essential functions of the job with or without reasonable accommodations.
A legally blind former state vehicle emissions compliance supervisor was not qualified individual when he could not perform the essential job function of operating motor vehicle and no reasonable accommodation would permit him to do so. Kielbasa v. Illinois Environmental Protection Agency, 2005 U.S. Dist. LEXIS (N.D.Ill. Nov. 3, 2005).

16. Identifying Essential Functions
Factors to consider in determining whether a function is essential include:
Whether the reason the position exists is to perform that function (e.g. a proofreader);
The number of other employees available to perform the functions or among whom the functions can be distributed; and
The degree of expertise or skill required to perform the function.

17. Identifying Essential Functions (cont.)
An employer’s view of what constitutes an essential job function will not be determinative.
Instead, the employer’s judgment is only one factor that will be given “consideration.”
If an employer has prepared a written job description before advertising or interviewing applicants for the job, the job description will be considered evidence of the essential functions of the job.

18. Essential Functions: Other Considerations
Evidence that may be considered in identifying the essential functions of a job:
The amount of time spent performing the function.
The consequences of not requiring someone in the position to perform the functions.
The work experience of others who have performed the job.

19. Essential Functions: Attendance
An individual may not be a qualified individual with a disability if the employee is excessively absent and the work cannot be performed off the employer’s premises.
Similarly, if attendance is an essential function of a position, an employee may not be qualified if his or her attendance is unpredictable.
Employers may be required to allow some absences as a reasonable accommodation.

20. A Record Of Impairment
A record of a substantially limiting condition includes:
having a history of a disability; or
having been misclassified or misdiagnosed as having a disability.

21. Individuals Regarded As Having An Impairment
An individual is regarded as having a disability if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not the impairment substantially limits, or is perceived to substantially limit, a major life activity.

22. Individuals Regarded As Having An Impairment (cont.)
An employee may not rely on the “regarded as” prong as an automatic claim under the ADA.
An employee must show that the employer discriminated against him or her.

23. Illegal Drug Use Is Not Covered By The ADA
A person “who is currently engaging in the illegal use of drugs” is not thereby a “qualified individual with a disability.”
“Drugs” means a controlled substance as defined by federal law (includes marijuana).

24. Illegal Drug Use Is Not Covered By The ADA (cont.)
A person who has participated or is participating in a supervised rehabilitation program and is no longer engaging in the illegal use of drugs may be considered disabled under the ADA.
An employer may hold an employee who engages in illegal drug use to the same qualifications as other employees, even if his or her performance or behavior is related to the illegal drug use.

25. Other Conditions Not Covered By ADA
The ADA specifically excludes the following conditions from its definition of “disability”:
Homosexuality and bisexuality;
Transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, and sexual behavior disorders; and
Compulsive gambling, kleptomania, or pyromania.

26. Direct Threat Exclusion
It is permissible for an employer to exclude an individual whose disability would pose a “direct threat to the health or safety of the [disabled] individual or others in the workplace.”
A “direct threat” means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.

27. Direct Threat Exclusion (cont.)
Factors to be considered in determining whether an employee poses a direct threat include:
The duration of the risk;
The nature and severity of the potential harm;
The likelihood that the potential harm will occur; and
The imminence of the potential harm.

28. Duty To Accommodate
An employer is required by Title I of the ADA to make “reasonable accommodations” to the known physical or mental limitations of a qualified applicant or employee unless it can demonstrate that the accommodation would impose an “undue hardship” on the operation of its business.

29. Reasonable Accommodation
Reasonable accommodation may include, depending on all the circumstances, measures such as the following:
Making facilities used by employees readily accessible to the disabled.
Allowing part-time or modified work schedules.
Permitting use of accrued paid leave or extended unpaid leave for necessary treatment.
Allowing reassignments or transfers to other vacant positions.
Acquiring or modifying equipment or devices.

30. Reasonable Accommodation (cont.)
Providing qualified readers or interpreters.
Restructuring the job by reallocating the nonessential functions of the job to other employees or by changing when and how the essential functions of the job are to be performed.
Making adjustments or modifications to examinations, training materials, or policies.

31. Reasonable Accommodation (cont.)
If an employer offers a disabled individual a reasonable accommodation, but the individual rejects the accommodation, the individual may lose his or her status as a qualified individual with a disability under the ADA.

32. Accommodation And Undue Hardship
Accommodation is not required when it would result in an “undue hardship” to the employer.
An “undue hardship” means an action requiring significant difficulty or expense, when considered in light of various factors (e.g., employer’s overall financial resources, size, number of employees, etc.).

33. When Accommodation Is Not Required
Employers are not required to provide the exact accommodation sought by an employee.
Employers are not required to provide an indefinite leave of absence.
Employers are not required to restructure a position so as to eliminate the essential functions.

34. When Accommodation Is Not Required (cont.)
Employers are not required to create a new position or bump another employee to accommodate a current employee’s disability.
Employers are not required to rescind or modify discipline imposed before the employer knew about the employee’s disability.
Employers are generally not required to allow employees to work from home.
Employers are not required to hold a job open indefinitely until an employee’s health problems are corrected.

35. Choosing An Appropriate Accommodation
Interactive Process: To determine the appropriate reasonable accommodation, it may be necessary for the employer to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation.

36. Choosing An Appropriate Accommodation (cont.)
Courts have carefully monitored the interactive process and generally have found against the party that refused to engage in discussions to determine the best way to accommodate a disability.
District 11 participates in the interactive process by holding “accommodations meetings” with employees with disabilities.

37. Medical Examinations
Employers are prohibited from requiring medical examinations of any applicant before an offer of employment has been made.
Employers may require applicants to undergo a medical examination if the examination takes place after an offer of employment has been made, but before the applicant begins work (i.e. District 11 POPP process).
Employers are prohibited from requiring an existing employee to undergo a medical examination unless the examination is job-related and consistent with business necessity.

38. Medical Information
Information regarding the medical condition or history of an applicant or employee must be collected and maintained on separate forms and in separate medical files and be treated as a confidential medical record, except that:
Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and the necessary accommodations;
First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
Government officials investigating compliance with the ADA must be provided relevant information on request.

39. Retaliation
The ADA prohibits an employer from discriminating against an individual because that individual has opposed any act or practice made unlawful by the ADA or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing to enforce any provision of the ADA.

40. Complaint Process
Within 300 days of the discriminatory event of discrimination, an applicant or employee may file a charge of discrimination with the Equal Employment Opportunity Commission (the “EEOC”).
The EEOC investigates the charge.
The EEOC makes a finding of “probable cause” or “no probable cause” of discrimination.
Regardless of the EEOC’s findings, a job applicant or employee may file an ADA claim against an employer in federal district court within 90 days of receiving the EEOC’s finding.

41. Questions?

42. Deborah S. Menkins, Esq. Deborah.menkins@bryancave.com 719-473-3800
Presented by:
Deborah S. Menkins, Esq.
address:
Phone number: