1. The ADA Amendments Act of 2008, EEOC’s Final Regulations, and ADA Compliance Equal Employment Opportunity Commission Office of Legal Counsel 2011

2. 2 The Americans With Disabilities Act: Legal Claims Disparate treatment Denial of reasonable accommodation Qualification standards that screen out based on disability Harassment Disability-related inquiries and medical exams Confidentiality of medical information Retaliation

3. 3 ADA Amendments Act of 2008 Signed into law September 25, 2008 Effective date: January 1, 2009 Makes important changes to definition of “individual with a disability” Much easier to meet definition of an “individual with a disability”

4. 4 Definition of “Disability” Three-part definition: -A physical or mental impairment that substantially limits a major life activity; -A record of such an impairment; or -Being regarded as having a disability In the ADAAA, Congress changed the meaning of key terms used in these definitions.

5. 5 ADAAA’s Major Statutory Changes to the Definition of “Disability” “Substantially Limited in a Major Life Activity”: 1. Need not be a “severe” limitation or “significantly restricted” 2. Major life activities include “major bodily functions” 3. Ameliorative effects of mitigating measures not considered 4. Impairments that are “episodic” or “in remission” are substantially limiting if they would be when active

6. 6 ADAAA’s Major Statutory Changes to the Definition of “Disability” (cont.) “Regarded As”: 5. No longer requires that employer perceived substantial limitation in a major life activity -- - Now covers anyone subjected to an action “prohibited by this Act” because of an actual or perceived physical or mental impairment

7. 7 EEOC Regulations (29 C.F.R. part 1630) Published in the Federal Register on March 25, 2011 Effective Date: May 24, 2011 Regulations closely track the statute Published along with revisions to interpretive guidance issued with the original regulations (also known as the appendix) EEOC revised only those portions of the regulations and appendix affected by the ADAAA

8. 8 Major Life Activities [§ 1630.2(i)] Statute and EEOC regulations provide two non- exhaustive lists of major life activities First list of major life activities should look familiar because most of these activities are ones previously recognized by EEOC and most courts - Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working

9. 9 Major Life Activities Include Major Bodily Functions New category of major life activities Will make it easier for individuals with many different types of impairments to establish disability Examples include functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, reproductive Also includes operations of an individual organ within a body system, such as the operation of kidney, liver, or pancreas

10. 10 Major Life Activities (cont.) Individual can show substantial limitation (or record of) in just one major life activity from either category Regulations say that in determining other examples of major life activities, “the term ‘major’ shall not be interpreted strictly to create a demanding standard for disability.” Whether something is a major life activity is not determined by reference to whether it is of “central importance to daily life.”

11. 11 Substantially Limits: Nine Rules of Construction [ § 1630.2(j)(1)] 1.Substantial limitation shall be construed broadly in favor of expansive coverage 2.Impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered substantially limiting. Nonetheless, not every impairment will be a disability. 3.Extensive analysis not required: Primary focus should be on a person’s qualifications for a job, need for reasonable accommodation, or whether discrimination occurred

12. 12 Substantially Limits: Rules of Construction (cont.) 4.Individualized assessment still required, but “substantially limits” is a lower standard than pre- ADAAA 5.Assessing ability to perform major life activity as compared to most people usually will not require scientific, medical, or statistical evidence, although presentation of such evidence is not prohibited 6. Ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses) shall not be considered

13. 13 Sixth Rule of Construction: Mitigating Measures medication, medical supplies, equipment, or appliances, low-vision devices, prosthetics (including limbs and devices), hearing aids and cochlear implants or other implantable hearing devices, mobility devices, oxygen therapy equipment and supplies use of assistive technology reasonable accommodations learned behavioral or adaptive neurological modifications (e.g., monocular vision, learning disabilities) psychotherapy, behavioral therapy, physical therapy

14. 14 Sixth Rule of Construction: “Ordinary Eyeglasses or Contact Lenses” [definition at § 1630.2(j)(6)] “Shall” take these into account in determining “disability” Definition: “lenses that are intended to fully correct visual acuity or to eliminate refractive error” Distinguished from “low vision devices” defined as “devices that magnify, enhance, or otherwise augment a visual image”

15. 15 Sixth Rule of Construction: Additional Points from Appendix on Mitigating Measures can be individual with a disability even if no limitations, or only minor limitations -- where evidence that in absence of effective mitigating measure the individual’s impairment would be substantially limiting can still be “individual with a disability” if forgo mitigating measures, but use or non-use may be relevant to whether “qualified” or “direct threat”

16. 16 Sixth Rule of Construction: Additional Points from Appendix on Mitigating Measures (cont.) Evidence could include limitations person experienced prior to using a mitigating measure, expected course of a particular disorder absent mitigating measures, or readily available and reliable information of other types. “However, we expect that consistent with the Amendments Act’s command (and the related rules of construction in the regulations) that the definition of disability ‘should not demand extensive analysis,’ covered entities and courts will in many instances be able to conclude that a substantial limitation has been shown without resort to such evidence.”

17. 17 Substantially Limits: Rules of Construction (cont.) 7. Impairments that are episodic or in remission can be substantially limiting if would be when active 8.Individual need only be substantially limited in one major life activity (either list) to have a disability 9.No minimum duration -- Impairment lasting fewer than six months may be substantially limiting

18. 18 Types of Impairments That Will Virtually Always Be Found To Be Substantially Limiting [§ 1630.2(j)(3)(ii)] Regulations emphasize that individualized assessment still required But, for certain impairments, this individualized assessment will virtually always result in a finding of substantial limitation due to the inherent nature of these conditions AND the extensive changes Congress made to the definition of disability

19. 19 Types of Impairments That Should Easily Be Found To Be Substantially Limiting [§ 1630.2(j)(3)(iii)] Deafness, blindness, mobility impairments requiring use of a wheelchair, intellectual disability (mental retardation), partially or completely missing limbs Autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy Mental impairments such as major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, schizophrenia

20. 20 Condition, Manner, or Duration [ § 1630.2(j)(4)] Some impairments will, as a factual matter, not fall into the category of impairments described above. With regard to these impairments, the regulations retain the “condition, manner, or duration” concepts to consider, if relevant, in determining if a substantial limitation exists.

21. 21 Condition, Manner, or Duration [ § 1630.2(j)(4)] (cont.) For example, may consider: -- the difficulty, effort, or length of time required to perform major life activity -- the pain experienced when performing a major life activity; -- the amount of time major life activity can be performed; or -- the way an impairment affects the operation of a major bodily function

22. 22 “Record of” a Disability [§ 1630.2(k)] 2 nd prong of definition of disability All of the changes reviewed for 1 st prong of definition (e.g., disregarding ameliorative effects of mitigating measures) would apply to a “record of” disability Probably much less likely to need this definition for coverage given expansion of 1 st and 3 rd definitions of disability Individuals with “record of” disability may be entitled to reasonable accommodation

23. 23 “Regarded As” Having a Disability [ § 1630.2(l)] This third prong of the definition of disability is completely redefined Now covers anyone subjected to an action “prohibited by this Act” because of an actual or perceived physical or mental impairment For example, applies to actions such as: refusal to hire, rescission of conditional job offer, demotion, denial of promotion, termination, discipline, annual evaluation and compensation decisions, placement on involuntary leave

24. 24 “Regarded as” (cont.) Regarded as coverage NO LONGER requires a showing that an employer believed the impairment substantially limited a major life activity Only two elements: Employer took employment action Because of an individual’s actual or perceived impairment

25. 25 “Regarded as” (cont.) Employer can defeat “regarded as” coverage by showing that the impairment at issue is BOTH transitory and minor [1630.15(f)] Transitory: Lasting or expected to last 6 months or less Whether impairment is transitory and minor determined objectively

26. 26 “Regarded as” (cont.) “Regarded as” coverage does not mean employer violated the ADA Employer may defend its employment action and, if the action taken for lawful reasons, then no discrimination Individuals covered only under “regarded as” definition NOT entitled to reasonable accommodation

27. 27 “Regarded as” (cont.) refusal to hire because of skin graft scars – regarded as termination because of cancer – regarded as termination of employee with angina due to belief he will pose a safety risk – regarded as termination of employee with bipolar – regarded as; employer can’t assert it believed impairment was transitory and minor termination of employee with hand wound that employer mistook as HIV – regarded as because the perceived impairment (HIV) on which the employer acted is not transitory and minor

28. 28 Association with an Individual with a Disability Not directly changed by ADAAA, but new definitions would apply to determining if person with whom applicant or employee has an association has a “disability” ADA also still prohibits discrimination (disparate treatment or harassment) against an applicant or employee based on their “association” with a person with a disability (e.g. family member) BUT: Employer still not required to provide ADA accommodation based on employee’s “association” with a person with a disability

29. 29 Additional ADAAA provisions “Uncorrected Vision” Standards: Must be “job-related and consistent with business necessity” Any applicant or employee can challenge, even if not an “individual with a disability”

30. 30 Additional ADAAA provisions (cont.) Affirmative Action: ADA now states expressly: “Nothing in this Act shall provide a 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.”

31. 31 ADAAA Implications First two prongs of the definition of “disability” will primarily be relevant where someone needs reasonable accommodation or claims an accommodation was unlawfully denied “Regarded as” prong will probably be most likely basis for coverage in non- accommodation cases

32. 32 ADAAA Implications (cont.) Where accommodation is requested, focus should be on NEED for accommodation rather than coverage Where accommodation is requested, employers may still ask for documentation to substantiate existence of non-obvious disability, but it will be different from, and likely less extensive than, documentation pre-ADAAA Employers can also still ask for documentation to substantiate the need for accommodation

33. 33 ADAAA Implications (cont.) Employers are more likely to have to defend qualification standards that exclude individuals from jobs based on impairments, since individuals affected by such standards will generally meet the “regarded as” definition of “disability” (i.e., unlikely that the impairments will be both transitory and minor)

34. 34 ADAAA Implications (cont.) Are qualification standards job-related and consistent with business necessity? Is decision to exclude applicant or employee for medical reason justified because not qualified or would pose a direct threat to safety?

35. 35 ADAAA Did Not Change the Definitions of: Qualified Reasonable Accommodation Undue Hardship Direct Threat Disability-Related Inquiries and Medical Exams Medical Confidentiality Retaliation

36. 36 “Qualified” under the ADA Has the requisite skill, education, experience and meets the other job- related requirements; and Can perform essential functions with or without reasonable accommodation

37. 37 Essential v. Marginal Functions Focus on purpose of the function – the result to be accomplished – not how function is performed Is individual actually required to perform this function? How often? Consequence of removing function? Does position exist to perform this function? Are special skills required?

38. 38 Reasonable Accommodation Reasonable accommodation is required for the known physical and mental limitations of an individual with a disability who is qualified, unless the employer can show undue hardship.

39. 39 Reasonable Accommodation Accommodation May Be Needed for: Application process Job performance and access to the workplace Benefits and privileges

40. 40 Examples of Reasonable Accommodation Making physical modifications to the workplace, acquiring equipment or assistive devices, or modifying existing equipment Making exceptions to policies Using different supervisory methods or modes of communicating Job restructuring (swapping or eliminating marginal functions) Part-time work or modified work schedules Sign language interpreters or readers Leave (unpaid leave where accrued leave, FMLA, etc. are exhausted or unavailable) Telework Reassignment to a vacant position

41. 41 Actions Not Required as a Reasonable Accommodation Removing an essential function or hiring someone else to perform it Lowering performance or production standards Excusing misconduct in violation of uniformly applied rules that are job-related and consistent with business necessity Providing “personal use items,” such as eyeglasses, wheelchairs, or prosthetic limbs

42. 42 Recognizing Requests for Reasonable Accommodation Reasonable accommodation process generally begins with request from applicant or employee Request does not have to include any “magic words” such as “ADA” or “reasonable accommodation” Request does not have to be in writing Request may come from someone other than applicant or employee (e.g. family member, health care provider, or counselor)

43. 43 “Interactive Process” Communicate, exchange information, search for solutions, consult resources as needed If requestor only knows the problem, not the solution, employer must search for possible solutions If requestor specifies particular solution but it cannot be provided, employer must search for and consider alternatives If more than one possible accommodation exists, employer has discretion to choose among equally effective alternatives

44. 44 Supporting Medical Information When and how much can employer request? GINA implications

45. 45 Reassignment Available to employees only, not applicants Vacant position that is not a promotion Must be qualified Equivalent position, if possible

46. 46 Undue Hardship Defense Must be significant difficulty or expense Consider: - Nature of the accommodation - Net cost of the accommodation - Overall financial and other resources of the employer - Impact of the accommodation on operation of employer’s business

47. 47 Undue hardship? A qualified deaf individual applies for a policy advisor position at a large federal agency. The position involves participating in many meetings and making presentations, including out of town, for which she would use a sign language interpreter on a regular basis. Would providing a full-time interpreter, including during business travel, constitute an undue hardship?

48. 48 Accommodation Request Made in Response to Poor Performance Rating Bob’s supervisor gives him an unsatisfactory bi-annual performance rating because his productivity has not met expectations. Bob responds that the reason his productivity has slowed is that his worsening vision impairment has made it difficult for him to work with small print on the documents he must review. What should Bob’s supervisor do?

49. 49 Productivity Affected By Leave That Was Granted as an Accommodation A food inspector is granted six months of leave as an accommodation due to disabling cancer treatment. In her annual performance appraisal, her supervisor proposes to rate her productivity as unsatisfactory because, due to her absence, her overall production for the year was half of what would otherwise be expected. What should human resources advise?

50. 50 Telework as a Reasonable Accommodation Sally, one of John’s top analysts, has been diagnosed with multiple sclerosis, a degenerative disease which makes her commute to work increasingly difficult. She asks to work from home full time. She has worked from home occasionally, but John is unsure whether he has the authority to grant her request, since the company policy only allows employees to telework 1 day per week. He is also concerned that Sally is not very productive at home, and doesn’t want her to miss their informal “brainstorming” sessions and other regular meetings. What should he do?

51. 51 Intersections ADA and FMLA ADA and workers’ compensation

52. 52 Direct Threat Defense Direct threat requires an individualized assessment Direct threat exists when: -- An individual poses a significant risk of substantial harm to the health or safety of himself or others because of his disability, AND -- The risk cannot be reduced or eliminated with a reasonable accommodation

53. 53 Direct threat? Factors to consider: - Duration of the risk - Nature and severity of the potential harm - Likelihood that the potential harm will occur - Imminence of the potential harm - Whether the risk can be eliminated or reduced with a reasonable accommodation

54. 54 Disability-Related Inquiries A question is “disability-related” if the answer is likely to disclose whether or not an individual has a disability.

55. 55 Medical Examinations A procedure or test is a “medical examination” under the ADA if it seeks information about an individual's physical or mental impairments or health.

56. 56 Disability-Related Inquiries and Medical Examinations Pre-offer: general rule - none Post-Offer, Pre-employment: yes, if required of all entering employees in same job category

57. 57 Current Employees Once individual is employed, disability-related inquiries or medical exams are permissible if job-related and consistent with business necessity, i.e.: -- If the employer has a reasonable belief based on objective evidence that due to a medical condition the employee may not be able to perform an essential function or may pose a direct threat; -- In support of an accommodation request, if the disability or need for accommodation is not obvious or already known; or, -- In limited circumstances, for positions affecting public safety if narrowly tailored to address specific job-related concerns

58. 58 Confidentiality of Medical Information includes all medical information of all applicants and employees, from whatever source obtained includes fact that someone has requested or received an accommodation violation of ADA to disclose to other managers, co- workers, or even other employers unless exception applies documents containing confidential medical information cannot be kept in regular personnel files

59. 59 Limited Exceptions Otherwise confidential medical information may be disclosed in the following circumstances: to supervisors and managers where they need it in order to provide a reasonable accommodation or to meet an employee's work restrictions; to first aid and safety personnel if an employee would need emergency treatment or require some other assistance in an emergency (such as help during an evacuation) because of a medical condition; to individuals investigating compliance with the ADA and with similar state and local laws; and pursuant to workers' compensation laws (e.g., to a state workers' compensation office in order to evaluate a claim) or for insurance purposes.

60. 60 Helpful Links Text of the amended statute, the final regulations, and EEOC question & answer documents: http://www.eeoc.gov/laws/types/disability.cfm EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship (2002): http://www.eeoc.gov/policy/docs/accommoda tion.html http://www.eeoc.gov/policy/docs/accommoda tion.html