Update on the ADA/ADAAA By: Joshua L. Klinger, Esq. Minahan & Muther, P.C. October 21, 2010

Overview ▫Disability – the basic definition of disability remains the same under the ADA Amendments Act (ADAAA) of ▫A federal employee’s disability discrimination claims are reviewed under EEOC’s ADA regulations under 29 C.F.R. Part ▫On September 23, 2009, EEOC issued a Federal Register Notice of Proposed rule making for its changed to 29 C.F.R. Part ▫The Notice and Comment period in reference to this rule making closed on November 23, ▫On December 7, 2009, the EEOC issued a Federal Register notice indicating the intent to have its ADAAA regulations finalized by July However, these regulations have not been finalized as of October 21, 2010.

Overview Disability – the basic definition of disability remains the same under the ADA Amendments Act of Disability is -  Physical or mental impairment that substantially limits one or more major life activities; or  Having a record of such an impairment; or  Being regarded as having an impairment Although Congress in the ADAAA changed the meaning of the terms. See 42 U.S.C. § 12102(2) – (4) (2010). The ADA Amendments Act of 2008 was signed into law by President George W. Bush on September 25, 2008, with a statutory effective date of January 1, 2009.

Overview Rehabilitation Act of 1973, as amended ▫Prohibits discrimination against qualified individual with disability; ▫Requires reasonable accommodation of qualified individual with disability if it does not impose an undue hardship on agency. ▫Requirements of Americans with Disabilities Act apply to Rehabilitation Act cases. 29 U.S.C. 791(g).

Overview Regarded As (one of the three prongs of the disability definition) ▫Employer regards an individual as having a disability if it takes a prohibited action based on an actual or perceived impairment that is not transitory and minor. ▫Transitory is defined as lasting or expected to last for six months or less. For example, taking an adverse employment action based on a sprained wrist and broken leg expected to heal normally does not amount to regarding an individual as having a disability, because these impairments are transitory and minor. ▫Taking an adverse action based on carpal tunnel syndrome or Hepatitis C, or on a 2-day virus that an employer perceived to be heart disease, would amount to regarding an individual as having a disability. ▫Actions taken on the basis of an impairment’s symptoms (e.g., a facial tic related to Tourette’s Syndrome) or an individual’s use of mitigating measures (anti-seizure medication for epilepsy) are actions taken on the basis of an impairment. ▫Note: reasonable accommodation is not available to someone only covered under the “regarded as” prong of the definition of “disability.” Summary of Key Provisions: EEOC’s Notice of Proposed Rulemaking to Implement the ADA Amendments Act

ADA Amendments Act of 2008 In the ADAAA, Congress stated: ▫Disability – “shall be construed in favor of broad coverage.” ▫Disability – “should not require extensive analysis” ▫Congress explicitly rejected the holding of the Supreme Court in Toyota Motor Mfg. v. Williams, 534 U.S. 134 (2002) in relation the court’s interpretation of ‘‘substantially limits’’ as requiring a ‘‘level of limitation, and the intensity of focus.’’

ADA Amendments Act of 2008 Individual with Disability – questions to ask: ▫Does the individual have a physical impairment or mental impairment? ▫Note:  Must be a medical condition.  Personality traits and characteristics are not impairments. ▫Is the person a qualified individual with a disability? ▫Did the individual request an accommodation? ▫Was there a plausible reasonable accommodation that would have allowed the individual to perform the essential functions of the position in question? ▫Did the Agency provide that accommodation or an alternative that would enable the individual to perform the essential functions of the position? ▫If not, would providing an accommodation have imposed an undue hardship on the Agency?

ADA Amendments Act of 2008 Impairment - Under ADAAA, impairments for which an individualized assessment can be conducted quickly and easily, and that will consistently result in a determination that the person is substantially limited in a major life activity:  deafness,  blindness,  intellectual disability (formerly known as mental retardation),  partially or completely missing limbs,  mobility impairments requiring use of a wheelchair,  autism,  cancer,  cerebral palsy,  diabetes,  epilepsy,  HIV/AIDS,  multiple sclerosis,  muscular dystrophy,  major depression,  bipolar disorder,  post-traumatic stress disorder,  obsessive-compulsive disorder, and  schizophrenia.

ADA Amendments Act of 2008 Impairment - Under ADAAA, impairments that may be substantially limiting for some individuals but not for others, and therefore may require somewhat more, though still not extensive, analysis include: ▫asthma, ▫high blood pressure, ▫back and leg impairments, ▫learning disabilities, ▫panic or anxiety disorders, ▫some forms of depression, ▫carpal tunnel syndrome, and ▫ hyperthyroidism. Temporary, non-chronic impairments of short duration with little or no residual effects that usually will not substantially limit a major life activity: ▫common cold, ▫seasonal or common influenza, ▫a sprained joint, ▫minor and non-chronic gastrointestinal disorders, ▫a broken bone expected to heal completely, ▫appendicitis, and ▫seasonal allergies. However, an impairment may still be substantially limiting even if it lasts or is expected to last fewer than 6 months, such as a 20-pound lifting restriction lasting several months.

Disability - Issues Individual with Disability Does the impairment affect a major life activity? For example, hearing, seeing, breathing, walking speaking, learning, performing manual tasks, or working.

Changes under the ADAAA Major Life Activity Prior to ADAAA - test for major life activities, except working: “is the individual unable or significantly restricted in performing activity as compared to average person in general population?” Under the ADAAA – an individual’s ability to perform a major life activity is compared to “most people in the general population” often using a common sense analysis without scientific or medical evidence. Prior to ADAAA - test for working : “is individual unable to or significantly restricted from performing a class of jobs or broad range of jobs?” ▫Under the ADAAA - An individual with a disability will usually be substantially limited in another major life activity, therefore generally making it unnecessary to consider whether the individual is substantially limited in working.  Replaces “class” or “broad range” of jobs with the concept of a “type of work.” ▫A type of work may be identified by the nature of the work (e.g., commercial truck driving, assembly line jobs, food service jobs, clerical jobs, or law enforcement jobs). ▫A type of work may also be defined by reference to job-related requirements (e.g., jobs requiring repetitive bending, reaching or manual tasks; jobs

Changes under the ADAAA Major Life Activity Under the ADAAA major life activities include “major bodily functions,” such as: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, cardiovascular systems, and reproductive functions. 42 U.S.C. § 12102(2)(B)

Changes under the ADAAA Under the ADAAA major life activities also include: ▫caring for oneself, performing manual tasks, ▫seeing, hearing, ▫eating, sleeping, ▫walking, standing, ▫lifting, bending, ▫speaking, breathing, ▫learning, reading, ▫concentrating, thinking, ▫communicating, sitting, ▫reaching, interacting with others, and ▫working. 42 U.S.C. § 12102(2)(A).

Reasonable Accommodation - Issues The ADAAA did not change the statutory provision regarding reasonable accommodation. See Simpson v. U.S. Postal Service, 113 M.S.P.R. 346 (2010). If individual needs accommodation is there a plausible accommodation that would permit him or her to perform essential functions of position? Has the individual requested reasonable accommodation? ▫The law does not require any formal mechanism or “magic words,” to notify an employer that an employee needs an accommodation. However, either by direct communication or other appropriate means, the employee “must make clear that the [he/she] wants assistance for his or her disability.” Jones v. United Parcel Service, 214 F.3d 402, 408 (3rd Cir. 2000). ▫An employee may use “plain English” and need not mention the Rehabilitation Act or use the phrase “reasonable accommodation” when requesting a reasonable accommodation. See Paris v. Department of Treasury, 104 M.S.P.R. 331 (2006)(an employee need only let his employer know in general terms that he needs accommodation for a medical condition); EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, at 5 (to make an accommodation request, an individual need only let the employer know that he needs an adjustment or change at work for a reason related to a medical condition and need not use the words “reasonable accommodation”). ▫An employer is liable for discriminating against an employee in need of accommodation based upon the employee's known disability. See Conneen v. MBNA American Bank, 334 F.3d 318 (3rd Cir. 2003); 42 U.S.C. § 12112(b)(5)(A) (requiring only reasonable accommodations to known disability); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996) (noting initial duty of employee to inform employer of disability is dictated by “common sense lest a disabled employee keep his disability a secret and sue later for failure to accommodate.”).

Reasonable Accommodation - Issues Can the individual perform the essential functions of the position in question with or without reasonable accommodation? ▫Position in question is the position the individual holds or desires. ▫Essential functions - are those that are central to the job and do not include marginal functions. ▫An employer, as a form of reasonable accommodation, is not required to eliminate an essential function of a position, nor lower production standards, whether qualitative or quantitative, that are applied uniformly to employees with or without disabilities. See EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act General Principles section, (October 17, 2002).

Reasonable Accommodation- Issues Did the Agency provide the accommodation, or an alternative accommodation that permitted the individual to perform the essential functions of the position? ▫A qualified individual with a disability is a person with the skills, training and experience to perform the essential functions of a position, with or without reasonable accommodation. 42 U.S.C. § 12111(8) (2010); 29 C.F.R. § (m) (2010). If there is no reasonable accommodation, did the Agency consider reassignment to any vacant positions the individual could have performed? ▫Employee has the evidentiary burden in an EEO case to establish that there were vacant positions during the relevant time period into which Complainant could have been reassigned. See Hampton v. U.S. Postal Service, EEOC Appeal No (2002). ▫Reasonable accommodation may entail modifications to the individual's current position or reassignment to a vacant position. 42 U.S.C. § 12111(9); Aka v. Washington Hospital Center, 156 F.3d 1284, (D.C. Cir. 1998) (en banc); 29 C.F.R. § (o) (2010).

Reasonable Accommodation – Issues An Agency must provide reasonable accommodation to the known limitations of a qualified individual with a disability unless to do so would create an undue hardship. 42 U.S.C. §§ 12112(a), (b)(5)(A) (2010); 29 C.F.R. § (2010). Undue hardship - consider: ▫Nature and cost of accommodation; ▫Overall financial resources of facility; ▫Number of persons employed at facility; ▫Effect on expenses and resources of facility; ▫Type of operation; and ▫Impact of accommodation on operation of facility.

Reasonable Accommodation Disability Costs Associated with Accommodations ▫A study from 1978 to 1997, found that the average direct cost of an accommodation was $45 for a national retailer (P. D. Blanck, The Economics of the Employment Provisions of the Americans with Disabilities Act: Part I— Workplace Accommodations, 46 DePaul L. Rev. 877 (1997)). ▫A 1996 study (D. L. Dowler, et al., Outcomes of Reasonable Accommodations in the Workplace, 5 Tech & Disability 345 (1996)) found that the average cost of accommodations was $200. ▫An examination of Job Accommodation Network data from 1992 to 1999 showed a median cost of $250 (Job Accommodation Network, Accommodation Benefit/Cost Data Tabulated Through July 30, 1999 (1999)). Good faith defense. ▫Agency is not liable for compensatory damages if, in consultation with complainant, it made a good faith effort to provide accommodation even if actual accommodation is short of what is legally required. See Guilbeaux v. U.S. Postal Service, EEOC Appeal No (2008). ▫If it becomes apparent that accommodation offered is not effective, Agency has obligation to pursue other means of accommodating an individual to avoid liability. See Bowers v. DOD, EEOC Appeal No (2010).

Genetic Information Nondiscrimination Act of 2008 Acquisition of Genetic Information Under GINA the general rule is that federal agencies may not request, require, or purchase genetic information with respect to an employee/applicant or family member of an employee/applicant. One exception, sometimes referred to as the “water cooler” exception, applies to inadvertent acquisition of genetic information. ▫The may occur, for example, where a supervisor overhears a conversation between co-workers in which genetic information is discussed or receives genetic information in response to a question about the general health of an employee or employees family member; or ▫where an employer receives genetic information as part of documentation an employee submits in support of a request for reasonable accommodation under the Americans with Disabilities Act (ADA) or other similar law.

Genetic Information Nondiscrimination Act of 2008 Confidentiality of Genetic Information ▫GINA section 206 addresses confidentiality of genetic information. ▫It is also unlawful for an employer to disclose genetic information about applicants or employees. Employers must keep genetic information confidential and in a separate medical file. (Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.) There are limited exceptions to this non-disclosure rule. ▫Congress made express the requirement that covered entities keep genetic information confidential by using the confidentiality regime required by the ADA generally for medical records. H.R. Rep , part I, at 39. ▫GINA does not require that covered entities maintain a separate medical file for genetic information. Genetic information may be kept in the same file as medical information subject to the ADA.

Genetic Information Nondiscrimination Act of 2008 GINA does not limit the rights or protections under Federal, state, local or Tribal laws that provide greater privacy protection to genetic information, and does not affect an individual’s rights under the ADA, the Rehabilitation Act, or state or local laws that prohibit discrimination on the basis of disability. However, GINA does limit an employer’s ability to obtain genetic information after making a job offer. Although the ADA use to allow covered entities to obtain family medical history or conduct genetic tests of job applicants once an offer of employment had been made, such action is prohibited as of November 21, 2010.

Misconduct/ Disability Dichotomy Agency’s can still discipline employees with disabilities. ▫An agency must show that the Appellant's misconduct would have justified the discipline imposed, regardless of any disability. Vena v. Department of Labor, 111 M.S.P.R. 165(2009) (citing Laniewicz v. Department of Veterans Affairs, 83 M.S.P.R. 477 (1999) (neither the Rehabilitation Act of 1973 nor the Americans with Disabilities Act of 1990 immunizes disabled employees from discipline for misconduct in the workplace, provided the agency would impose the same discipline on an employee without a disability)). The Tenth Circuit decision in Den Hartog v. Wasatch Academy (1997) explained that the “equal treatment” rule was expressly adopted by Congress in one area: alcoholics and drug addicts. ▫For those two types of employees, the law states that they may be disciplined in the same manner as non- disabled employees for misconduct, even if the misconduct is caused by their disabilities. For all other employees, the Tenth Circuit states that abnormal behavior must be tolerated if it does not keep the employee from the performing the essential duties of her job and that the employer can take action against the employee for disability-caused misconduct only if it is a “direct threat” to others or if the accommodation proposed by the employee (assuming she needs an accommodation) would be an “undue hardship.” The Court of Appeals stated in the Den Hartog case: ▫Mental illness is manifested by abnormal behavior, and is in fact normally diagnosed on the basis of abnormal behavior.... To permit employers carte blanche to terminate employees with mental disabilities on the bases of any abnormal behavior would largely nullify the ADA’s protection of the mentally disabled. 129 F.3d at 1087.

Misconduct/ Disability Dichotomy Hougens v. U.S. Postal Service, 38 MSPR 135 (1988) ▫In that case, the Board held that “an agency may impose reasonable discipline for any act of misconduct, short of removal, while at the same time affording the abusing employee an opportunity to rehabilitate.” Id. at 148. ▫The rationale in the Hougens case was something like “everybody knows that one way to help people overcome their problem is to make them take responsibility for the consequences of their actions.”

MSPB case – Application of the ADAAA Disability discrimination – Failure to Accommodate ▫To establish a prima facie case of disability discrimination based on a failure to accommodate, an Appellant must show: (a)they are a disabled person under 29 C.F.R. § (g); (b)the action appealed to the Board was based upon their disability; and (c)to the extent possible, that there was a reasonable accommodation under which the appellant believes they could perform the essential duties of his or her position or of a vacant position to which he or she could be reassigned. Hardy v. U.S. Postal Service, 104 M.S.P.R. 387, 404 (2007)(citing Savage v. Department of the Navy, 36 M.S.P.R. 148, (1988)).

MSPB case – Application of the ADAAA Disparate Treatment – MSPB cases ▫To establish a prima facie case of disparate treatment based on a disability, in the absence of direct evidence, the appellant must show: (a)They are a qualified individual with a disability; (b)They are situated similarly to an individual who was not a qualified individual with a disability; and (c)They were treated more harshly than the individual who was not a member of her protected group, or some other evidence giving rise to an inference of discrimination. Doe v. U.S. Postal Service, 95 M.S.P.R. 493 (2004).

MSPB case – Application of the ADAAA Sanders v. SSA, 2010 MSPB 155 (2010) ▫Ms. Sanders was removed on April 30, 2010, from her Benefits and Records Technician position. ▫Agency removed her for poor performance under Chapter 43. ▫MSPB found that Ms. Sanders was “disabled.” ▫Disability – learning impairment (was based on medical evidence that she was a slow learner since childhood). ▫Ms. Sanders admitted that her impairment affected her ability to process certain forms that were a part of her job. ▫Ms. Sanders requested an accommodation – full time mentor. ▫The MSPB found this requested accommodation unreasonable (Agency provided a mentor during the performance improvement period and this mentoring did not improve the Appellant’s performance). ▫The MSPB also noted that there was no evidence in record that another position was available for Ms. Sanders.