ADA Amendments Act & Proposed Regulations - What Employers Need to Know

ADA AMENDMENTS ACT
AND PROPOSED REGULATIONS:
WHAT EMPLOYERS NEED TO KNOW

Presented by:
Daniel A. Schwartz & Margaret M. Sheahan

October 13, 2009

© 2009 PULLMAN & COMLEY, LLC

Before We Start

• Powerpoint materials can be downloaded directly from
drop.io/danielschwartz.
• This webinar will be available for rebroadcast and
download later today from the same site.
• Other materials: www.ctemploymentlawblog.com
• Please feel free to submit any questions you might have
and we’ll try to address them in the end.
• If you have any issues, please feel free to e-mail me at
dschwartz@pullcom.com.
• If you have a question, submit it through the webinar.


What’s New?

• Court decisions on “disability” perceived as making
enforcement too difficult

• Congress “corrected” it through legislation

• EEOC proposed implementing regulations


Timeline

• ADA enacted 1990; amendments passed in September
2008.
• ADAAA Effective date January 1, 2009
– Not Retroactive
– Only applies to allegations arising after that date
• EEOC proposed regulations on September 23, 2009
• Comments due by 11/23/09
• Final regulations soon thereafter
– no earlier than Q1 2010


Key Supreme Court and EEOC Positions Overturned

• The ADA Amendments Act of 2008 reverses two US
Supreme Court decisions by name:
– Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999),
which required mitigating measures to be factored in the
determination of whether a plaintiff has a disability.
– Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002), which called for strict
interpretation of the terms “substantially” in the
“substantially limits” concept and “major” in the “major
life activity” concept.
• The 2008 statute also specifically rejected an EEOC
interpretive regulation that defined “substantially
limits” as “significantly restricts.”

What Did NOT Change?

• Still applies to employers with 15 or more employees
• Actual definition of “disability”
• Duty to provide “reasonable accommodations”
• Employer defenses (direct threat, undue hardship)


What are The Key Changes?

• Employers must now adopt a broad standard to
determine if someone is “disabled” – something found
in the language of the amendments itself.
• Courts are to provide coverage to individuals “to the
maximum extent permitted.”
• Focus should be on whether discrimination occurred.
– Whether someone is “disabled” should be a fairly
simple, preliminary matter.
– Start treating issue as with other “protected classes.”


Changes to Definition of “Major Life Activities”

• Expands the definition of "major life activities" by
including two non-exhaustive lists:
– the first list includes many activities that the EEOC has
recognized (e.g., walking) as well as activities that EEOC
has not specifically recognized (e.g., reading, bending,
and communicating)
– the second list includes major bodily functions (e.g.,
"functions of the immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions")


Changes to “Substantially Limits”

• Directs EEOC to revise that portion of its regulations
defining the term “substantially limits”
• Must be interpreted consistent with Congress’s findings
and purposes:
– Defining it as “significantly restricted” is too high a
standard according to Congress.


Other Rules of Construction Changes

• Clarifies that an impairment that is episodic or in
remission is a disability if it would substantially limit a
major life activity when active
• An impairment that substantially limits one major life
activity need not limit other major life activities in order
to be considered a disability


Changes to “Regarded As” Definition

• Under the amendments, an individual now must show
only that the employer perceived the individual as
having a mental or physical impairment:
– Individual does not need to show that that employer
perceived an impairment that substantially limits a major
life activity.
• “Regarded as” individuals NOT entitled to reasonable
accommodation


What About Mitigating Measures?

• Previously, courts and employers had to determine a
person’s disability taking into account the effects of
mitigating measures such as prosthetics, medications or
hearing aids.
• Now, employers and courts must ignore those
measures in the threshold issue of whether employee
has a “disability.”
• However, in reasonable accommodation analysis, these
measures can and should be considered.


Big Exception – Glasses

• Congress created an exception for ordinary eyeglasses
and contact lenses.

• Those items CAN be considered when determining if
someone is disabled.


Proposed Regulations - Summary

Expands the definition of “major life activities” through
two non-exhaustive lists:

• The first list includes activities such as 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.


Proposed Regulations – Major Bodily Functions

– The second list includes major bodily functions, such as
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.


Proposed Regulations – Substantially Limits

• In General
– As compared to most people in the general population
– Need not prevent or significantly or severely restrict


Proposed Regulations – Substantially Limits

Important Changes to Rules of Construction
• Effect on activities of central importance to daily life is
NOT required.
• Common sense is enough without scientific or medical
evidence.
• Focus is on the limitation, not on the ability in spite of
impairment.
– New paradigm for looking at these cases


Proposed Regulations – Presumed Disabilities
(Non-Exhaustive)
– deafness – epilepsy
– blindness – HIV or AIDS
– intellectual disability – multiple sclerosis and
– partially or completely muscular dystrophy
missing limbs – major depression
– mobility impairments – bipolar disorder
requiring the use of a – post-traumatic stress
wheelchair disorder
– autism – obsessive compulsive
– cancer disorder
– cerebral palsy – schizophrenia
– diabetes


Proposed Regulations – May be Disabling
(Non-Exhaustive)

• asthma
• high blood pressure
• learning disability
• leg or back impairment
• psychiatric impairment
• carpal tunnel syndrome
• hyperthyroidism


Proposed Regulations – Probably NOT
Disabilities

• short duration with little or no residual effects, such as,
common cold, seasonal or common influenza, a
sprained joint, minor and non-chronic gastrointestinal
disorders, or a broken bone that is expected to heal
completely


Beware of the State Law

• State law definition of “disability” may be even broader
than the ADAAA.
• Any chronic condition, without regard to impact, may
be covered, for example.
• Each statute provides a floor and whichever is more
generous to employee will apply.
• Query whether legislation will be adopted to bring
more consistency to issue in Connecticut (compare
with CTFMLA/FMLA).


Action Steps For Employers

• Review and update policies for outdated limitations.
• Train and educate human resources and front-line
supervisors.
• Look for common-sense view on potential disability
scenarios.
• Default position is likely to be that individual IS
protected; emphasis on what then.
• As always, document rationale and steps considered
and taken to accommodate any difficulties.


Swine Flu & ADA (In Brief)

• Generally, ADA prohibits disability-related inquiry or
medical exam unless job-related & consistent with
business necessity
– Can show likely to be impaired by medical condition
– Employee will pose a “direct threat” (check EEOC)
– But can ask e’ees if experiencing flu-like symptoms
• Regardless, all information should be kept confidential
• Can send e’ees home if display flu-like symptoms
• Can implement telework, infection-control
• If employee has been absent, can ask why


In Conclusion

• Webinar series continues the second Wednesday of
every month
– November will be moved because of Veterans Day
• Questions?
– Be sure to either “raise hand” or submit question on the
toolbar.
– If your question isn’t answered, we will try to followup
in the next 24 hours.


Dan Schwartz Margaret Sheahan
Pullman & Comley, LLC Pullman & Comley, LLC
90 State House Square 850 Main Street
Hartford, CT 06604 Bridgeport, CT 06601
p 860.424.4359 p 203.330.2138
dschwartz@pullcom.com msheahan@pullcom.com
www.ctemploymentlawblog.com
http://www.linkedin.com/in/ctattorney
http://twitter.com/danielschwartz

Bridgeport
Hartford
Stamford
White Plains

www.pullcom.com

ADA Amendments Act & Proposed Regulations - What Employers Need to Know

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