ADAAA: Crippling Employers?
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Effect on employers of Americans with Disabilities Act Amendments Act -- a presentation by Joseph "Trey" Wood of BoyarMiller
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ADAAA: Crippling Employers?
- 1. ADAAA: CRIPPLING EMPLOYERS? January 14, 2014 Joseph “Trey” L. Wood BoyarMiller 832.615.468 twood@boyarmiller.com BoyarMiller-Employee Relations
- 2. A Little History behind the ADAAA BoyarMiller EMPLOYEE RELATIONS
- 3. A Little History behind the ADAAA BoyarMiller EMPLOYEE RELATIONS
- 6. Comparison of new definition of disability to the old Old Definition A physical or mental impairment that substantially limits one or more major life activities; or A record of such impairment; or Being regarded as having such impairment. New Definition A physical or mental impairment that substantially limits one or more major life activities; or A record of such impairment; or Being regarded as having such impairment. BoyarMiller EMPLOYEE RELATIONS
- 7. “A broad scope of protection…” Courts should provide coverage for plaintiffs “to the maximum extent permitted” Definition extends to impairments that are episodic or in remission. “Disability” Definition to Be Read Broadly BoyarMiller EMPLOYEE RELATIONS
- 8. Caring for oneself; Performing manual tasks; Seeing Hearing Eating; Sleeping; Walking; Standing; Lifting; Bending; Speaking; Breathing; Learning; Reading; Concentrating; Thinking; Communicating; Working Operation of any major bodily function ◦ Immune system ◦ Cell growth ◦ Digestive functions ◦ Reproductive functions ◦ Endocrine ◦ Bowel ◦ Bladder ◦ Neurological ◦ Brain ◦ Respiratory ◦ Circulatory “Major Life Activity” BoyarMiller EMPLOYEE RELATIONS
- 9. The Only Exception… Mitigating Measures Ignored BoyarMiller EMPLOYEE RELATIONS
- 10. “Regarded As” More Broadley Read BoyarMiller EMPLOYEE RELATIONS
- 11. EEOC Permitted to Regulate ADA and Define “Substantial Limitation BoyarMiller EMPLOYEE RELATIONS
- 12. Adds reaching, sitting, and interacting with others as MLA’s; Expands major bodily functions to include hemic, lymphatic and musculoskeletal systems; In order to be “substantially limiting” an impairment need not severely or significantly restrict performance of MLA. (Rejecting Supreme’s interpretation) Episodic Impairments: examples given are epilepsy, cancer, depression, hypertension, asthma, bipolar disorder and PTSD. Highlights of New Regs BoyarMiller EMPLOYEE RELATIONS
- 13. Regs Give Examples of Qualifying Disabilities Deafness; Blindness; Intellectual disability; Partially or completely missing limbs; Mobility impairments requiring wheelchair; Autism; Cancer; Cerebral palsy; Schizophrenia; Diabetes; Epilepsy; HIV/AIDS; Multiple Sclerosis; Muscular Dystrophy; Major Depression; Bipolar Disorder; PTSD; Obsessive-compulsive disorder; BoyarMiller EMPLOYEE RELATIONS
- 14. Highlights of New Regs 5 Rules of Construction: ◦ Focus on whether discrimination occurred—not if there is a disability (no extensive analysis); ◦ Individual whose impairment substantially limits MLA need NOT show a limitation in inability to perform “activities of central importance to daily life.” (Rejection of Toyota v. Williams); ◦ Limitation of only one MLA is enough; ◦ When looking at an individual’s limitation to determine substantial limitation, use common sense, not scientific or medical evidence; ◦ “Transitory and minor claims:” Impairments < 6 months may be substantially limiting. BoyarMiller EMPLOYEE RELATIONS
- 15. Application of the ADAAA by the Courts Summary judgments going, going, gone! Changing the definition of a covered disability; There is no longer a requirement that for a finding of liability against an employer that the employer “regarded as” disabled someone who is suffering from an impairment that substantially limits a major life activity; Elimination of consideration of mitigating measures; Employee’s limited in the “major life activity” of “working.” Employees with “episodic” conditions or “inactive” conditions. BoyarMiller EMPLOYEE RELATIONS
- 16. What you can expect in the future BoyarMiller EMPLOYEE RELATIONS
- 17. What You Can Do About It During the interactive process, remember that it is being done without regard to mitigating measures Watch out for the “regarded as” prong Review policies and change them to comply with the language of the ADAAA Provide TRAINING to decision makers Review and update written job descriptions Before pulling the trigger, call your lawyer BoyarMiller EMPLOYEE RELATIONS
- 19. Factors to consider for accommodation Nature and cost; Overall financial resources and size of company; Impact on the business; Would it be unduly disruptive to others BoyarMiller EMPLOYEE RELATIONS
- 20. What is reasonable accommodation? Working at home; Modified work schedules; Policy modifications; Modification of supervisory methods; Job coaches; Reassignment or transfers; Extended leave of absence; Job modifications; Special equipment or assistance BoyarMiller EMPLOYEE RELATIONS
- 22. One Final Note: EEOC issues opinion that requirement of high school diploma may violate ADAAA. BoyarMiller EMPLOYEE RELATIONS
- 23. ADAAA: CRIPPLING EMPLOYERS? January 14, 2014 Joseph “Trey” L. Wood BoyarMiller 832.615.468 twood@boyarmiller.com BoyarMiller-Employee Relations