HR That Works Blog

One of the most significant changes the ADA Amendments Act made to the definition of disability is that now, when trying to figure out how limited a person is by his impairment, we ignore the beneficial effects of any mitigating measures he uses. This change has been very confusing to some, but once you figure it out, it really is not that difficult. All it means is that we now have to determine what effects an impairment would have if the person did not use any mitigating measures.

And just what are mitigating measures? They are things a person uses to treat his impairment or overcome any limitations the impairment causes. Examples include things like wheelchairs, hearing aids, medication, prosthetic limbs, and therapy.

How do we know how limited a person would be without his mitigating measures? First we need to know if he uses mitigating measures. In some cases it will be obvious – we will see his wheelchair or hearing aid or prosthetic limb. In other cases we may need to ask him or get medical documentation when appropriate.

Next we need to find out what would happen if the person did not use the mitigating measure. Again, in some cases it will be obvious. For example, if a person with a prosthetic leg does not use his prosthesis, he will be substantially limited in walking. If it is not obvious, there are various ways to figure out how limited the person would be without the use of a mitigating measure, such as:

• Find out what limitations a person experienced prior to using a mitigating measure,
• Find out the expected course of a particular disorder absent mitigating measures, or
• Look at readily available and reliable information of other types.

You may be wondering when this issue will arise. It usually comes up in the workplace when an applicant or employee requests an accommodation and the employer needs to determine whether that person meets the definition of disability and is therefore entitled to the accommodation. One important thing to remember is that ignoring the beneficial effects of mitigating measures only applies to determining whether someone has a disability. When looking at whether a person needs a reasonable accommodation we do the opposite – we will look at what limitations he has after he uses the mitigating measure. That is why the best approach is to make the disability determination a separate step from the reasonable accommodation process.

So you see, the ADA Amendments Act rule about mitigating measures is not that hard to apply. All it usually takes is some common sense. For more information, see JAN’s Accommodation and Compliance Series: The ADA Amendments Act of 2008 and ADA Library.

- Linda Carter Batiste, J.D., Principal Consultant, The Job Accommodation Network (www.askjan.org)

 EEOC Obtains $120,000 for Driver With Disability Denied Accommodation and Fired

SAN FRANCISCO — The Pepsi  Bottling Group, Inc. (NYSE: PBG) agreed to pay $120,000 and implement  preventive measures to settle a disability discrimination lawsuit filed by the  U.S. Equal Employment Opportunity Commission (EEOC), the agency announced  today.

According to the EEOC’s lawsuit, Pepsi terminated Eldridge Davis, a  driver at its Hayward, Calif., facility, for “job abandonment and  violation of the company attendance policy,” even though Davis had followed  proper procedure to inform his supervisor and the company that he could not  finish his route due to his disability and needed to take medical leave.

Davis, age 48, had worked for Pepsi since October 1996  and was promoted to driver in December 1999.

The Americans With Disabilities Act (ADA)  prohibits disability discrimination and requires employers to make reasonable  accommodations to employees with disabilities. This settlement resolves EEOC v. Pepsi Bottling Group, Inc., CV 09-4594 EMC, filed in 2009 in  U.S. District Court for the Northern District of California. Under the terms of the consent decree settling  the suit, Pepsi agreed to implement training on anti-discrimination laws, post a  notice at the work site on the settlement and other injunctive relief, in  addition to paying Davis  $120,000.

“Medical  leave is a widely recognized accommodation, and in Mr. Davis’s case, could  easily have been granted, avoiding the loss of a valuable and experienced  employee,” said EEOC San Francisco Regional Attorney  William R. Tamayo. “Since recent  amendments to the ADA  have broadened the definition of disability, forward-thinking employers may  want to re-evaluate their policies on workplace accommodations. Studies show that reasonable accommodations  are frequently no- or low-cost, with the added benefit of improving  productivity and morale, reducing turnover and building a diverse and loyal work  force.”

http://www.ca9.uscourts.gov/datastore/memoranda/2011/07/06/10-35729.pdf

The point is this: Just because an injured employee may not be able to return to work due to their injuries…they may be able to return to work by granting them an accommodation. Because Wal-Mart may not have engaged in an interactive dialogue the court let the case move forward. Wal-Mart was also being sued for wrongful termination. As stated by the court:

“Here, considering the facts in the light most favorable to Cox, Wal-Mart terminated her between seven and ten months after she invoked her OWCL rights. Cox has offered evidence that during those intervening months, Wal-Mart disciplined her unjustifiably on three occasions, and refused to accommodate her, even though before Cox invoked her rights, Wal-Mart found her performance acceptable and gave her accommodations. A reasonable jury could infer from this evidence that Cox’s termination was causally linked to her invocation of her OWCL rights.”

Diability.gov released settlements in ADA cases related to somebody who had a car accident, somebody missing fingers on one hand, somebody with dwarfism, and somebody with Asperger syndrome. See https://www.disability.gov/civil_rights/enforcing_the_ada_%26_other_laws .

The point is this: As mentioned in the recent ADA Webinar, you run great risk when you don’t understand ADA obligations. Don’t assume people can’t do the job and don’t allow prejudice or bias to get in the way facts…and the law. US the tools and support on HR That Works to get this right!

Have you ever gotten a court subpoena from an attorney asking for the employment records of an employee, including his or her complete medical records? Employers who receive a court subpoena for such records may have routinely assumed that it was okay to provide these records because a subpoena is a court order, and although the Americans with Disabilities Act  (“ADA”) restricts an employer’s ability to provide medical information regarding an employee, there is an exception to this confidentiality provision for court orders. However, a recent ruling from the Equal Employment Opportunity Commission (“EEOC”) calls this standard operating procedure into question, at least for subpoenae issued by state courts.

The EEOC recently ruled that providing an employee’s medical records in response to a state court subpoena violated an employee’s privacy rights under the confidentiality requirements of the Rehabilitation Act, the federal statute that parallels the ADA for employees of the federal government. The facts are these: a maintenance mechanic for the United States Postal Service (“USPS”), Mr. Bennett, injured his back while on duty and later suffered a sinus/respiratory injury that further limited his ability to work. While he was still employed, Bennett filed an unrelated state court lawsuit against another company, Union Carbide Corporation. As part of Union Carbide’s defense to the unrelated lawsuit, it served a subpoena on the USPS, requesting Bennett’s payroll and personnel records, including his medical records. A Union Carbide Human Resources Associate compiled the requested documents, including correspondence between Bennett and his doctors regarding his medical diagnosis and his Workers’ Compensation claim forms listing injuries he claimed to have suffered, as well as documentation of his job offers for light duty. The files were produced to Union Carbide’s attorneys in response to the subpoena.

Bennett filed a claim with the EEOC alleging, in part, that the USPS had violated the confidentiality requirements of the Rehabilitation Act (which are parallel to those in the ADA) by disclosing his medical information to Union Carbide without his consent. His charges were initially dismissed, and Bennett appealed, only to have his charges dismissed again. However, in February, in a decision that went largely unnoticed, the EEOC held that “[a] request for an employee’s medical records pursuant to a discovery request in a civil action would not fit into one of the exceptions to the ADA’s confidentiality requirement.” In its reasoning, the EEOC claimed that, although the statute provides an exception to the confidentiality requirement and permits disclosure “pursuant to the order of a court of competent jurisdiction,” this exception was not applicable, because the subpoena was a state court subpoena, signed and issued by the Deputy Clerk of the state court where Bennett had filed his lawsuit against Union Carbide. The EEOC’s decision appears not to restrict an employer from producing such records in response to a federal court subpoena. However, unless and until the EEOC’s position is rebuked by the courts, we advise consulting with your labor and employment attorney prior to responding to any state court or other subpoena that requests information that could be considered confidential medical information under the ADA.

Courtesy of Worklaw® Network firm Skoler Abbott & Presser, P.C.

This is a classic “trap” case. A guy gets injured and is claimed 100% disabled. He cannot go back to his regular job as a police officer…but…and it’s a $1.5 million but…he could be accommodated under the ADA to do a light duty position as an accommodation.

Here’s the paragraph that says it all:

“The more persuasive evidence suggested that Lindsay was more focused on the workers compensation administrator’s concern about re-employing Plaintiff than on any medical restrictions per se. Cambridge Associates—a third party workers compensation claims administrator recently hired by the City for its expertise in managing workers compensation cases—instigated the decision to send Plaintiff home because of its concern that the City could not place someone in the workplace who, for purposes of workers compensation, was “100% disabled.” There is a strong inference that Lindsay and others involved in the decision deferred to Cambridge’s presumed expertise, not realizing that having already placed Plaintiff into the “light duty” assignment, the City had an independent duty to comply with FEHA.”

In ruling it concluded:

“The court finds that the City is liable for disability discrimination based on adverse employment action. In May 2003, it maintained several permanent “light duty” assignments and filled the assignment with sworn officers whose disabilities prevented them from performing the otherwise essential functions of a sworn police officer. The City placed Plaintiff into one of these assignments. Although Plaintiff was able to perform the essential functions of this “light duty” assignment, Plaintiff’s supervisors decided to “send him home” after learning, from the City’s worker’s compensation administrator, that he was “100% disabled.” The City’s decision to send him home was an adverse employment action based on discriminatory criteria. At trial, the City failed to prove any legitimate nondiscriminatory basis for terminating his employment, and is therefore liable for discrimination.

“The court also finds that the City is liable for failure to engage in an interactive process or to otherwise accommodate Plaintiff’s disability. After years of workers compensation litigation, the City had extensive knowledge about Plaintiff’s past disabilities. The City’s decision to bring him back to work notwithstanding its pre-existing knowledge of his disabilities was sufficient to shift the burden of proof and require the City to demonstrate that it engaged in meaningful dialogue with Plaintiff and made reasonable accommodations. Instead of engaging in a dialogue, the City summarily instructed him to leave the workplace and is therefore liable.”

Employer Lesson: Remember, The ADA and often FMLA run concurrently with Work Comp return to work issues. The failure reasonably to accommodate a disability the question is whether the employee can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position.

To read this instructional case go to http://www.courtinfo.ca.gov/opinions/documents/B224303.PDF

In this case, a court employee (Willis) was fired in part for her bad conduct, including outbursts and threats of violence. She claimed her bipolar disorder caused the behavior cited as the basis for her termination, and the conduct occurred while she experienced a severe manic episode. Wills further alleged a group of coworkers triggered her manic episode by harassing her. Finally, Wills asserted the OC Court fired her in retaliation for complaining to her supervisors about the harassment. Thankfully, her disability discrimination claim failed. The court ruled an employer may reasonably distinguish between disability caused misconduct and the disability itself when the misconduct includes threats or violence against coworkers.  In these circumstances, terminating the employee based on the misconduct does not amount to discrimination prohibited by FEHA (or the ADA). To read the case go to: http://www.courtinfo.ca.gov/opinions/documents/G043054.PDF.

On March 24, 2011, the Equal Employment Opportunity Commission (EEOC) issued Final Regulations to implement the ADA Amendments Act of 2008 (ADAAA). Like the law they implement, the Regulations simplify and expand the determination of who has a “disability” and will make it easier for claimants to establish that they are protected by the Americans with Disabilities Act (ADA).

The  ADAAA was enacted on September 25, 2008, and became effective on January 1, 2009. The ADAAA’s purpose is “to reinstate a broad scope of protection” by expanding the definition of the term “disability.” In enacting the ADAAA, Congress found that persons with many types of impairments – including epilepsy, diabetes, HIV infection, cancer, multiple sclerosis, intellectual disabilities, major depression, and bipolar disorder – have been unable to bring ADA claims because they were found not to meet the ADA’s definition of “disability.” Congress explicitly rejected certain Supreme Court interpretations of the term “disability,” finding that those decisions inappropriately narrowed the definition of disability.

The ADAAA directed the EEOC to amend its Regulations to reflect the changes made by the ADAAA. The EEOC’s Regulations clarify the following provisions of the law:

Disability. The Regulations retain the basic three-part definition of the term “disability”, as (i) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (ii) a record of such an impairment; or (iii) being regarded as having such an impairment.

Impairment. The Regulations define “physical or mental impairment” as (1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine; or (2) any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

With regard to pregnancy-related conditions, the Regulations clarify that although pregnancy itself is not an impairment, a pregnancy-related impairment that substantially limits a major life activity is a disability under the first prong of the definition. Alternatively, a pregnancy-related impairment may constitute a “record of” a substantially limiting impairment, or may be covered under the “regarded as” prong if it is the basis for a prohibited employment action and is not “transitory and minor.”

Major Life Activities. The Regulations include a non-exhaustive list of “major life activities” including, (i) 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; and (ii) the operation of a major bodily function, including functions of 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.

Notably, the standard established in the U.S. Supreme Court’s decision Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002), for determining whether an activity qualifies as a major life activity – that it be of “central importance to most people’s daily lives” – no longer applies. In determining other examples of major life activities, the term “major” shall not be interpreted strictly so as to create a demanding standard for disability.

Substantially Limits. The Regulations make clear that some impairments, given their inherent nature, will virtually always be found to impose a substantial limitation on a major life activity. For these impairments, the individualized assessment should be particularly simple and straightforward. The Regulations include examples of impairments that should easily be found to substantially limit a major life activity, including: deafness substantially limits hearing; blindness substantially limits seeing; an intellectual disability substantially limits brain function; partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function; autism substantially limits brain function; cancer substantially limits normal cell growth; cerebral palsy substantially limits brain function; diabetes substantially limits endocrine function; epilepsy substantially limits neurological function; Human Immunodeficiency Virus (HIV) infection substantially limits immune function; multiple sclerosis substantially limits neurological function; muscular dystrophy substantially limits neurological function; and major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function.

Comparison to “Most People.” The Regulations state that in determining whether an individual has a substantially limiting impairment, the individual’s ability to perform a major life activity can be compared to that of “most people in the general population.”

Duration of an Impairment’s Limitations in Assessing “Substantially Limits.” The Commission specifically declined to provide for a six-month durational minimum for showing disability. Additionally, the Commission did not set a minimum duration that an impairment’s effects must last in order to be deemed substantially limiting. Impairments that last only a short period of time may be covered if sufficiently severe.

Mitigating Measures. Mitigating measures, other than ordinary eyeglasses or contact lenses, cannot be considered in determining whether an individual has a disability. Mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices ( e.g., devices that magnify a visual image), hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, and learned behavioral or adaptive neurological modifications. In the Final Regulations, the Commission has added psychotherapy, behavioral therapy, and physical therapy to the list of “mitigation measures” that cannot be considered, and notes further that its list is not exhaustive.

Impairments That are Episodic or in Remission. An impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. This means that chronic impairments with symptoms or effects that are episodic rather than present all the time can be a disability even if the symptoms or effects would substantially limit a major life activity only when the impairment is active. Examples of impairments that may be episodic, include epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. An impairment such as cancer that is in remission but may possibly return in a substantially limiting form will also be a disability.

Condition, Manner, or Duration. The Commission inserted the terms “condition, manner, or duration” as concepts that may be relevant in certain cases to show how an individual is substantially limited and included language to illustrate what these terms mean. For example, “condition, manner, or duration” might mean the difficulty or effort required to perform a major life activity, pain experienced when performing a major life activity, the length of time a major life activity can be performed, or the way that an impairment affects the operation of a major bodily function.

Substantially Limited in Working. Since no other major life activity was singled out in the Regulations for elaboration, the Final Regulations do not mention the major life activity of working other than by its inclusion in the list of major life activities. The Regulations address how to analyze the “major life activity of working” only in the appendix, where the Commission retained the original analysis of whether an individual has difficulty performing either a “class or broad range of jobs.”

Record of a Disability. Examples of “record of” disabilities are included in the appendix to the Regulations. For example, the “record of” provision would protect an individual who was treated for cancer ten years ago but who is now deemed by a doctor to be free of cancer, from discrimination based on that prior medical history.

Regarded As. The Final Regulations provide further clarification and explanation of the scope of “regarded as” coverage. Even if coverage is established under the “regarded as” prong, the individual must still establish the other elements of the claim (e.g., that he or she is qualified) and the employer may raise any available defenses. In other words, a finding of “regarded as” coverage is not itself a finding of liability. Notably, an employer may show that an impairment is “transitory and minor” as a defense to “regarded as” coverage.

The Commission added a provision providing that a covered entity is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong.

Evidence of Disability. The Regulations do not include rules on what type of information an employer may request about the nature of an impairment (e.g., during the interactive process in response to a request for reasonable accommodation). The EEOC noted that it has stated repeatedly in policy documents and technical assistance publications that individuals requesting accommodation must provide certain supporting medical information if the employer requests it, and that the employer is permitted to do so if the disability and/or need for accommodation are not obvious or already known. The ADA Amendments Act does not alter this requirement.

Discrimination Claims By An Individual Without A Disability. The Regulations clarify that there is no basis for a claim that an individual without a disability was subject to discrimination because of his lack of disability, including a claim that an individual with a disability was granted an accommodation that was denied to an individual without a disability.

The EEOC has issued fact sheets that explain the ADAAA, including Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008 and Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008.

Article courtesy of Worklaw Network firm Shawe Rosenthal.

Revised regulations implementing the Americans with Disabilities Act (ADA) take effect on March 15, 2011. The regulations apply to the activities of more than 80,000 units of state and local government and more than seven million places of public accommodation, including stores, restaurants, museums, sporting arenas, movie theaters, doctors’ and dentists’ offices, hotels, jails and prisons, polling places and emergency preparedness shelters.

For more information visit https://www.disability.gov/civil_rights/laws_%26_regulations/americans_with_disabilities_act.

Copper Manufacturer Refused to Hire Applicant Because of His Participation in Medically Supervised Drug Rehabilitation Program, Federal Agency Charged

PITTSBURGH – A major copper parts manufacturer will pay $85,000 and furnish significant remedial relief to settle a federal disability discrimination lawsuit, the U.S. Equal Employment Opportunity Commission (EEOC) announced today. The EEOC had charged that Hussey Copper, Ltd. unlawfully refused to hire a job applicant because of his record of a disability and because they regarded him as disabled.

According to the EEOC’s suit, Leetsdale, Pa.-based Hussey Copper offered Donald Teaford a job as a production laborer but later unlawfully rescinded the job offer based on his disability. The job offer had been conditioned on Teaford passing a physical examination. As a result of the post-job offer examination, the company’s doctor learned that Teaford was receiving methadone as part of a clinically supervised chemical dependency treatment program. The company then rescinded the job offer, mistakenly concluding that Teaford was a safety risk due to his methadone treatments, the EEOC said. Teaford was qualified for the position, was not experiencing adverse side effects from the methadone treatments, and the treatment program provided the company’s doctor with information verifying Teaford’s successful and compliant participation in the program.

“Methadone treatment is one of the most monitored and regulated medical treatments in the United States,” said District Director Spencer H. Lewis, Jr. of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Delaware, West Virginia, Maryland and parts of New Jersey and Ohio. “This case should remind all employers that the ADA requires employers to make individualized assessments about an individual’s ability to do the job instead of acting out of speculative fears or biases.”

Refusing to hire a qualified individual because of his disability, record of disability or because the employer perceives a person as being disabled violates the Americans With Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Western District of Pennsylvania, Civil Action No. 08-809, after first attempting to reach a pre-litigation settlement through its conciliation process.

The parties reached agreement to settle the case by consent decree after conducting a three-day non-jury trial in federal court. In addition to the $85,000 in monetary relief to Teaford, Hussey Copper will hire him as a mason utility laborer. The five-year consent decree resolving the lawsuit enjoins Hussey Copper from further engaging in any employment practice that discriminates based on disability. The decree mandates that Hussey Copper will revise and disseminate policies prohibiting discrimination based on disability and must set up procedures for promptly investigating and addressing such misconduct. The company must also provide anti-discrimination training and post a notice on the settlement.

EEOC Regional Attorney Debra Lawrence said, “We are pleased that in addition to the monetary relief and the injunctive relief that will benefit all company employees and applicants, Hussey Copper will also hire Mr. Teaford. He now has the opportunity to earn a living performing a job for which he is well-qualified.”