JAN is a service of the U.S. Department of Labor’s Office of Disability Employment Policy.

ADA UPDATE

JAN welcomes Jeanne Goldberg, Senior Attorney Advisor, from the U.S. Equal Employment Opportunity Commission.

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Quick Recap: Basic ADA Provisions That Apply to Individuals with Disabilities No disparate treatment (actions based on disability permissible if individual not qualified or poses direct threat to safety)No use of qualification standards that screen out based on disability unless job-related and consistent with business necessityNo harassmentNo denial of reasonable accommodation absent undue hardship

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Quick Recap: Basic ADA Provisions That Apply to Individuals with Disabilities No RetaliationNo Improper Disability-Related Inquiries or Medical ExamsNo Improper Disclosure of Confidential Medical Information

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Does the Individual Have a Substantially Limiting Impairment? When considering if an individual who has requested accommodation has or had an impairment that “substantially limits a major life activity,” remember the changes made by the ADA Amendments Act of 2008 (ADAAA).ADAAA: The definition of disability “shall be construed in favor of broad coverage” and “should not demand extensive analysis.”Definition is much easier to meet.

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When it enacted the ADAAA, Congress made 4 changes to “substantially limited in a major life activity”:Need not prevent, or significantly or severely restrict, a major life activityMajor life activities include “major bodily functions”Ameliorative effects of mitigating measures not consideredImpairments that are “episodic” or “in remission” are substantially limiting if they would be when active

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EEOC Notice of Rights Under the ADA Amendments Act of 2008 (ADAAA):

http://www.eeoc.gov/laws/types/adaaa_notice_of_rights.cfm

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How have courts been interpreting and applying the ADAAA?For the most part, courts are applying the ADAAA to easily find that individuals with a wide range of conditions previously unprotected now meet the “substantially limited” standard.The turn-around in the case law is especially notable with respect to cancer, as well as HIV, multiple sclerosis, diabetes, and psychiatric conditions.

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Recent Examples of Disability Coverage Under ADAAA Standards Diabetes: Willoughby v. Connecticut Container Corp., 2013 WL 6198210 (D. Conn. Nov. 27, 2013). Citing 29 C.F.R. § 1630.2(j)(3)(iii): “diabetes substantially limits endocrine function,” an example of impairments that “should easily be concluded” to meet disability definition; testimony and medical documentation established symptoms and complications, and medication regimen

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Recent Examples of Disability Coverage Under ADAAA Standards, cont. Cancer: Haley v. Community Mercy Health Partners, 2013 WL 322493 (S.D. Ohio Jan. 28, 2013). Six-week absence for cancer surgery and recuperation; “when active,” the cancer substantially limited major life activities of “normal cell growth”

Norton v. Assisted Living Concepts, Inc., 786 F. Supp. 2d 1173 (E.D. Tex. 2011). “Cancer at any stage ‘substantially limits’ the ‘major life activity’ of ‘normal cell growth’”

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More Examples – New Rules Applied Gogos v. AMS Mechanical Systems, Inc., 737 F.3d 1170 (7th Cir. 2013) Court applies new rules re: major bodily functions, “episodic or in remission,” and mitigating measuresChronic high blood pressure, which caused vision loss for several minutes when it spiked, could substantially limit circulatory function or eyesight “when active”Moreover, Plaintiff’s chronic high blood pressure could be substantially limiting even if due to the benefits of medication, he had never experienced any substantial limitation

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“Temporary” ImpairmentsSummers v. Altarum Institute, Corp., 740 F.3d 325 (4th Cir. 2014) Plaintiff fractured his left leg, tore a tendon in his left knee, fractured his right ankle, and ruptured a tendon in his right leg. Following two surgeries, his doctors restricted him from putting any weight on his left leg for six weeks, and estimated that he would not be able to walk normally for at least seven months District court: too temporary to be substantially limiting

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“Temporary” Impairments, cont.Summers v. Altarum Institute, Corp., 740 F.3d 325 (4th Cir. 2014) Fourth Circuit reversed: under ADAAA, even “temporary” impairments may be substantially limiting“effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” 29 C.F.R. § 1630.2j)(1)(ix)Duration of an impairment is relevant, but not dispositive

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Substantially Limited – Pain During MLAsMazzeo v. Color Resolutions Int'l, LLC, 746 F.3d 1264 (11th Cir. 2014)Herniated disc and resulting pain—which had lasted for years and was serious enough to require surgery—substantially limited plaintiff’s ability to walk, bend, sleep, and lift more than ten pounds Relevant facts may include: difficulty, effort, or time required to perform the major life activity; pain experienced while performing it; length of time, or the extent to which, it can be performed; effect on the operation of a major bodily function, etc. See also Barlow v. Walgreen, 2012 WL 868807 (M.D. Fla. March 14, 2012) (back impairments could be shown to substantially limit musculoskeletal function).

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Substantially Limited – Pain During MLAsEastman v. Research Pharmaceuticals, Inc., 2013 WL 3949236 (E.D. Pa. Aug. 1, 2013) (herniated disc and related impairments) Citing 29 C.F.R. § 1630.2(j)(4)(iii): “the focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve.” Held: “although plaintiff may have been able to drive and work, plaintiff put forth evidence from which a fact finder could reasonably conclude that these activities were more difficult for her as compared to most people in the general population because they caused her significant pain”

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Supporting Medical Information When and how much medical information can the

employer ask for in support of an accommodation request? ADAAA has not changed the rule: If not obvious or already known, an employer may obtain

reasonable documentation that an employee has a disability and needs the accommodation requested.

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Supporting Medical Information Employer may ask employee to obtain the supporting

medical information from employee’s treating health care provider, or ask employee to sign limited release allowing employer to contact the health care provider directly.

For example, employer might seek to verify diagnosis and limitations, follow up to clarify limitations as well as what accommodation might be effective, and for how long it may be needed.

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Effect of Genetic Information Nondiscrimination Act (GINA) on Employer Requests for Medical Documentation Title II of GINA prohibits employers from requesting, requiring, or purchasing genetic information (which includes family medical history) of applicants and employeesInadvertent acquisition of genetic information does not violate Title II of GINAWhen employer requests medical documentation to support accommodation, it should warn not to provide genetic information. If it does so, any receipt of genetic information by the employer will be deemed inadvertent.

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Genetic Information Non-Discrimination Act (GINA) – EEOC Settlements Post-offer medical exams may comply with the ADA but nevertheless violate GINA if genetic information is requested by employer or its contract physicianEEOC v. Founders Pavilion, Inc., Case No. 13-cv-06250 (W.D.N.Y. consent decree entered Jan. 13, 2014) (EEOC alleged nursing and rehabilitation center requested family medical history in post-offer medical exams in violation of GINA, and also rescinded offers in violation of the ADA; systemic case resolved for $370,000 and other relief for 138 individuals).

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Genetic Information Non-Discrimination Act (GINA) – EEOC Settlements, cont. EEOC v. Fabricut, Inc., Case No. 13-CV-248-CVE-PJC (N.D. Okla. consent decree May 7, 2013) (EEOC alleged that contract medical examiner requested family medical history in post-offer medical exam in violation of GINA; case settled for $50,000)

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Examples of Common Accommodations physical modifications to building or workspace; sign language interpreters and readers; assistive technology and modification of equipment

and devices; modified work schedules; making exceptions to policies; job restructuring (swap/eliminate marginal functions); changing supervisory methods; allowing a job coach to participate; telework; leave; reassignment to a vacant position.

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What if Employee Asks for Poor Performance or Misconduct to Be Excused as an Accommodation? Employer is NOT required to lower production or performance standards, or to modify performance appraisal, as an accommodationEmployer is NOT required to excuse violations of uniformly-applied conduct rules that are job related and consistent with business necessity

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Performance and Conduct, cont. But if employee who requests accommodation has a substantially limiting impairment and will continue to be employed (i.e., result of poor appraisal or discipline is not termination), the employer must offer an alternative prospective accommodation, if available, absent undue hardship.

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Performance and Conduct, cont. Is there something that can assist the employee to meet the standard going forward? If accommodation provided but problems continue, is it because of the disability (e.g., the accommodation provided was not effective, and a different accommodation or reassignment must be considered), or is it for reasons unrelated to the disability?

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Recap: Actions Not Required as an AccommodationLowering production or performance standards (though pro-rate production requirements for period of leave as an accommodation)Excusing violations of conduct rules that are job-related and consistent with business necessityRemoving an essential functionMonitoring an employee’s use of medication

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Other Actions Not Required as an AccommodationProviding personal use itemsChanging someone’s supervisor (though changing supervisory methods may be required)Actions that would result in undue hardship (significant difficulty or expense)

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Choosing an Accommodation Primary consideration should be given to the

employee’s requested accommodation But an employer has the discretion to choose among

equally effective alternatives, as long as the accommodation provided is effective

Act promptly to avoid undue delay

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Keys to the Interactive Process Communicate, exchange information, search for

solutions, consult resources as needed. If requestor only knows the problem, not the

solution, employer is still obligated to provide an accommodation if available. Search for possible accommodations.

If requestor asks for a particular accommodation, but it is one that legally need not be provided (e.g., request to lower production standards), employer must provide an alternative if available. Search for and consider alternative accommodations.

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Frequent Questions: Telework As a reasonable accommodation for an individual with

a substantially limiting impairment, an employer may need to permit more frequent telework than is otherwise allowed under its regular telework policy.

Fact-specific determination based on particulars of position: Telework as accommodation need not be granted as an accommodation if not feasible or poses an undue hardship.

Employee can be held to same performance and production standards as working on-site. Managers can require daily accomplishment reports or use other management methods for all teleworking employees.

Work From Home/Telework as a Reasonable Accommodation, www.eeoc.gov/facts/telework.html

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TeleworkEEOC v. Ford Motor Co.,

2014 WL 1584674 (6th Cir. April 22, 2014) With modern advances in technology and the

increasing prevalence of telework agreements, “attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.”

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Access to Benefits of EmploymentFeist v. Louisiana Dept. of Justice,

730 F.3d 450 (5th Cir. 2013) Employer provided employee parking; employee

requested as a reasonable accommodation for arthritis a reserved space closer than the one she had been assigned

Held: reasonable accommodation is not limited to accommodations related to performing essential functions of the job; district court erred in requiring a nexus between the two

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Reasonable Accommodation – Interactive Process Horn v. Knight Facilities Management-GM, Inc., 2014 WL 715711 (6th Cir. Feb. 25, 2014)Plaintiff, a janitor, proposed accommodations for her chemical sensitivity to cleaning products, but they were not objectively reasonable

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Interactive Process, cont. Horn v. Knight Facilities Management-GM, Inc., 2014 WL 715711 (6th Cir. Feb. 25, 2014)The employer’s actions, including modifying the employee’s cleaning route to accommodate her initial restriction from exposure to bathroom cleaning chemicals, and follow up conversations with the employee’s physician and the employee to explore any alternative accommodations, satisfied the employer’s obligationThe interactive process does not have to follow a particular format. Employer’s separate conversations with employee, her treating physician, and union representative were sufficient

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Reasonable Accommodation: Interactive Process Spurling v. C&M Finepack, Inc., 2014 WL 107968 (7th Cir. 2014)

Plaintiff, a Forming Inspector/Packer, began periodically falling asleep at work.

She received progressive discipline and was issued a Final Warning/Suspension on April 5, 2010.

However, the employer invited her to provide medical information to avoid termination.

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Interactive Process, cont. Spurling v. C&M Finepack, Inc., 2014 WL 107968 (7th Cir. 2014)

She provided a doctor's note indicating that she had a disability, which was causing her wakefulness problem, and that she was receiving further treatment, and the employer then terminated her.

Appellate court held that the employer may have violated the ADA when it ceased the interactive process it initiated, and terminated her for prior misconduct upon learning of her medical condition.

Employer could have terminated her for the misconduct when it occurred.

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Federal Contractors - Disability Self Identification Associated Builders & Contractors, Inc. v. Shiu, __ F. Supp. 2d __, 2014 WL 1100779 (D.D.C. March 21, 2014) Federal contractors do not violate Title I of the ADA by complying with mandatory data collection requirements in the new OFCCP regulations promulgated under Section 503 of the Rehab ActADA legislative history makes clear Congress intended to permit contractors to invite applicants to voluntarily self-identify as individuals with disability when done for affirmative action purposes under Section 503 of the Rehab Act

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Disability Self Identification, cont. Associated Builders & Contractors, Inc. v. Shiu,

__ F. Supp. 2d __, 2014 WL 1100779 (D.D.C. March 21, 2014) Court cites Opinion Letter from EEOC Legal Counsel providing additional reasons why compliance with the OFCCP requirements will not violate the ADAContractors must still otherwise comply with all ADA prohibitions regarding pre-offer disability-related inquiries

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Jeanne Goldberg

Senior Attorney Advisor

Office of Legal Counsel

U.S. Equal Employment Opportunity Commission

jeanne.goldberg@eeoc.gov

(202)663-4693

Contact Information

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ADA Update

Contact (800)526-7234 (V)

(877)781-9403 (TTY) AskJAN.org jan@askjan.org (304)216-8189 via Text janconsultants via Skype

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