1. Recent Trends in ADAAA Cases Presented By: Kelly A. Hayden, JD Director, Employment Law Services/ General Counsel Management Association

2. Background The ADAAA was enacted September 25, 2008 and effective January 1, 2009. Congress directed the EEOC to issue regulations. The regulations were issued March 25, 2011 took effect May 24, 2011. The ADAAA makes it easier for an individual to seek protection under the Act and to establish that he/she is disabled within the meaning of the Act. Congress mandated that the definition of disability be construed broadly and the new regulations carry out this directive. The regulations also make it easier for an individual to establish coverage under the ADAAA’s “regarded as” prong. Neither the ADAAA or the regulations change the definition of disability…the regulations change how that term should be interpreted.

3. Definition of Disability A physical or mental impairment that substantially limits one or more major life activities; A record of physical or mental impairment that substantially limited a major life activity, or When a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (regarded as prong).

4. What are “major life activities?” Non-exhaustive list includes: 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. Operation of bodily functions including the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.

5. When does an Impairment Substantially Limit a Major Life Activity? An impairment need not prevent or significantly limit a major life activity. “Substantially limits” to be construed broadly in favor of expansive coverage. Individualized assessment. Primary focus should be on whether discrimination occurred; this determination should not require “extensive analysis.” Only one major life activity need be affected for coverage.

6. How Long Does Impairment Have to Last for Coverage? Six month rule no longer applies to “actual” or “record of” cases. Duration is a factor; but there is no bright line test. For “regarded as” cases, transitory impairments (those lasting fewer than six months) are excluded from coverage.

7. Episodic Impairments/Impairments in Remission Episodic impairments and impairments in remission are now specifically covered if the impairments would limit a major life activity in their active state. Provides examples: epilepsy, hypertension, diabetes, multiple sclerosis, asthma, cancer and psychiatric disabilities, including major depressive disorder, bipolar disorder and schizophrenia..

8. Reduce or eliminate the symptoms/impact of an impairment. Non-exhaustive list includes medication, medical equipment/devices, prosthetic limbs, low vision devices, oxygen therapy equipment, use of assitive technology, psychotherapy, behavioral and physical therapy. Does not include ordinary glasses/contact lenses. Positive effects can no longer be considered in determining if individual is disabled. (Negative effects may be considered). All effects of mitigating measures may be considered in determining need for reasonable accommodation/direct threat. No requiring use of a mitigating measure. Mitigating Measures

9. Individualized Assessment According to EEOC, certain impairments will nearly always substantially limit major life activities. These include (but are not limited to): deafness, blindness, intellectual disability, partially/completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, MS, MD, major depressive disorder, bipolar disorder, PTSD, OCD and schizophrenia.

10. Is That a Disability? Recent Court Decisions in Favor of Employees Injuries from a car accident, including difficulty sitting for long periods, climbing stairs/ladders, carrying heavy things, sleeping, engaging in sexual activity and general day-to-day “stuff.” Medlin v. Honeywell Analytics, Inc. 2012 WL 511997 (M.D. Tenn. 2/15/12). Breast cancer survivor. Katz v. Adecco USA, Inc., 2012 WL 78156 (S.D.N.Y. 1/10/12). Depression. Estate of Murray v. UHS of Fairmount, Inc., 2011 WL 5449364 (E.D. Pa. 11/10/11).

11. Employee Cases (cont). Stuttering. Medvic v. Compass Sign Co., LLC, 2011 WL 35113499 (E.D. Pa. 8/10/11). Carpal tunnel on left hand only. Gibbs v. ADS Alliance Data Systems, Inc., 2011 WL 3205779 (D. Kan. 7/28/11). Ankle injury. Fleck v. Wilmac Corp. 2011 WL 1899198 (E.D.Pa. 5/19/11). Obesity. Lowe v. American v. Eurocopter, LLC, (N.D. Miss 12/16/10).

12. Is That a Disability? Recent Cases in Favor of Employers Colonoscopy/polypectomy. Brtalik v. South Huntington Union Free School District., 2012 WL 748748 (E.D.N.Y. 3/8/12). Headaches/alcoholism. Mann v. Donahoe, 2012 WL 569189 (D. Conn. 2/21/12). Lifting restrictions for 4-6 weeks. Overfield v. H.B. Magruder Memorial Hospital, Inc. 2012 WL 243341 (N.D. Ohio 1/25/12). H1N1. Lewis v. Florida Default Law Group, P.L., 2011 WL 4527456 (M.D. Fla 9/16/11).

13. “Record of” a Disability An individual who does not currently have a substantially limiting impairment but who had one in the past. Could include conditions in remission. Could require reasonable accommodation.

14. “Regarding” Someone as Disabled An organization violates this prong when it takes an action prohibited by the ADA against an individual who has an impairment or who the organization believes to be impaired. Will not apply if the impairment is “transitory and minor:” lasting or expected to last for six months or less. Previously (but no longer), an individual had to prove that the organization believed the impairment or perceived impairment to substantially limit a major life activity.

15. “Regarded As” An organization violates this section if it takes a prohibited action against an individual because of an actual or perceived impairment. Defenses include: impairment was transitory and minor, individual not “qualified,” direct threat, requirements of another law and, most importantly, employer lack of knowledge of the employee’s medical condition. No duty to accommodate if based on perception.

16. “Regarded As” Cases Visual field defect. Chamberlain v. Valley Health System, Inc. 2011 WL 560777 (W.D. Va. 2/8/11). Herniated disc and “100% healed” policy. Powers v. USF Holland, Inc. 2010, WL 1994833 (N.D. Ind. 5/13/10, affirmed 667 F.3d 815 (7 th Cir. 2011). Fractured upper arm. George v TJX Cos., 2009, WL 4718840 (E.D.N.Y. 12/9/09). Angina. Wurzel v. Whirlpool Corp. 2010 WL 1495197 (N.D. Ohio, 4/14/10).

17. Requiring Medical Documentation from Employees Employer may require medical documentation from an employee when the employee requests accommodation and the disability is not obvious. Documentation to establish the existence of the disability and a link between the disability and accommodation request. The request for documentation should be limited to the specific issue. Start with employee’s doctor. If employer’s doctor involved, employer pays. If employee requests reasonable accommodation, employee has a duty to cooperate in providing information.

18. Next Steps for Employers Accommodation policy in employee handbook. Train managers and supervisors to recognize requests for accommodation and what to do when received. Document all steps of accommodation process. Make sure all leaves are coordinated: FMLA, ADA accommodations, worker’s compensation.