1. ADA Amendments Act How Does It Affect You? William Barrett & Heath Galloway

2. Americans with Disabilities Act of 1990 (ADA) Overview  Who is Covered?  All private sector employers and most governmental employees engaged in any activity “affecting commerce” with 15 or more employees  Qualified Person  A job applicant or employee with a “disability  Who can perform the “essential functions” of the current job (or a suitable alternative)  With or without “reasonable accommodation”

3. ADA ADA  Defining Disability  Physical or mental impairment that “substantially limits” one or more “major life activities”  A record of such impairment; or  Being regarded as having such an impairment

4. Substantial Limitation  To constitute a disability, the limitation of a major life activity must be substantial  An individual with a significant impairment will not be protected by the ADA (and the employer is not necessarily obligated to follow the act) unless the impairment limits one of the individual’s major life activities in a substantial way

5. Essential Functions of the Job  A particular job duty is an essential function if the job exists, in significant part, to perform that function, and if removing the function would fundamentally alter the nature of the job

6. Reasonable Accommodation  Making existing facilities readily accessible to and usable by persons with disabilities  Job restructuring, modifying work schedules, reassignment to a vacant positions  Acquiring or modifying equipment or devices, training material, or policies  Employer is required to make reasonable accommodation to known disability of qualified applicant or employee if it would not impose an “undue hardship”

7. ADA Amendments Act (ADAAA)  Background:  Amends the ADA  Effective January 1, 2009  Overturns several employer-friendly Supreme Court decisions

8. Key Provisions of ADAAA  Provide a broader protected class by:  Prohibiting consideration of mitigating factors  Expanding definition of key terms within “disability” definition  Including non-exhaustive list of covered major life activities; and  Overturning controversial Supreme Court decisions that narrowed scope of ADA protection

9. Prohibit Inclusion of Mitigating Measures  Sutton v. United Airlines, 527 U.S. 184 (1999)  Identical twins with visual disability that could be corrected were denied pilot positions  Sutton not disabled due to prescribed medication (corrective eye measures)  Under Sutton, employers could consider mitigating measures in determining disability

10. Prohibit Inclusion of Mitigating Measures  Congress rejects Sutton requirements that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures  Under the ADAAA, employers cannot factor in mitigating measures (medication, prosthesis or hearing aid) when determining disability

11. Redefining Disability  Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)  Williams claimed disability due to her Carpal Tunnel Syndrome  Court denied claim; she must show “an impairment that prevents or severely restricts [her] from doing activities that are of central purpose to most people’s daily lives,” regardless of whether the unaccommodated impairment prevents her from performing essential job functions

12. Redefining Disability  ADAA rejects Toyota standard that the terms “substantially” and “major” need to be interpreted strictly to create a demanding standard for qualifying as disabled  Under the ADAAA the definition of disability “shall be construed in favor of broad coverage under the Act, to the maximum extent permitted by the Act”  An impairment that is “episodic or in remission” is a disability “if it would substantially limit a major life activity when active”

13. “Substantially Limits”  Congress rejects current EEOC ADA regulation that defines term “substantially limits” as “significantly restricts”  EEOC directed to revise its regulation to define “substantially limits” consistent with finding and purpose of ADAAA  Requires a lower degree of functional limitation than the previous Standard

14. “ Substantially Limits”  It is to be construed “Broadly, in favor of Expansive Coverage  Still an individual Assessment in each case  Determination of limitation is made without considering mitigating measures such as medication or hearing aids  Only one exception – “ordinary” eyeglasses or contact lenses

15. New Definition of Major Life Activities  Major life activities defined to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working

16. New Definition of Major Life Activities  Definition also includes operation of major bodily functions, including but not limited to immune system; cell growth; digestive, bladder, and bowel functions; neurological and brain functions; respiratory and circulatory functions; endocrine functions; reproductive functions

17. “Regarded as Prong”  Under ADAAA- individual is “regarded as” disabled if subjected to discrimination because of an actual or perceived impairment “whether or not the impairment limits or is perceived to limit a major life activity”  Under ADAAA- “regarded as” does not apply to impairments that are transitory and minor (defined as impairment with actual or expected duration of 6 months or less)

18. The ADAAA In Action  Formerly there was a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities »Final regulations provide nine (9) rules of construction to guide analysis  By applying the nine (9) rules, some impairments will virtually always be disabilities  Examples: epilepsy, diabetes, cancer, HIV, Bipolar disorder

19. “Nine (9) Rules of Construction”  “Substantially Limits” is construed broadly  An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity compared to most people. Need not prevent or significantly restrict the activity  Primary focus in cases is the question of covered employees meeting their obligations and whether discrimination has occurred. So “substantial limitation” should not require extensive analysis

20. “Nine (9) Rules of Construction”  Determination of “substantial limitation” is an individual assessment  Comparison to “most people” usually will not require scientific, medical, or statistical analysis. Such evidence is not prohibited, however  Determination of “substantial limitation” made without considering mitigating measures

21. “Nine (9) Rules of Construction”  Impairments that are episodic (migraines) or in remission (cancer) can be substantially limiting as they would be when active  Individual need only be substantially limited in one major life activity to be disabled  No minimum duration. Impairments lasting fewer than six (6) months may be substantially limiting

22. Caselaw Examples  Gibbs v. ADS Alliance Data Systems, Inc.  Retail credit card customer service, collections  Plaintiff or sales/service rep  Carpal Tunnel Syndrome – injury sustained at her second job at CVS Pharmacy and due to repetitive work at ADS  Medical release for full duty after 6 months  Plaintiff’s burdens met

23. Caselaw Examples  Sibilla v. Follett Corp.  Plaintiffs (two sisters) alleged that Follett (a bookstore chain) “regarded” them as disabled because they were very overweight  Case dismissed before trial (summary judgment)  Evidence was insufficient to show Follett “regarded” the sisters as overweight/obsese, or that Follett “regarded” being overweight as a disability  Case note: ADAAA “regarded as” prong no longer requires a plaintiff to prove their impairment limits – or is perceived to limit – a major life activity

24. Caselaw Examples  Moloney v. Home Depot USA, Inc.  Plaintiff alleged he was terminated from his sales associate position due to his mental disability (low IQ, educationally impaired)  Case turned on a determination of whether his supervisors were aware of his disability  Store and its managers were informed of his impairment during hiring. Direct Supervisors knew he lived in a group home, recognized he was “slow,” and had trouble focusing  Termination after 10 years of generally positive reviews for “poor customer service” was therefore a question for the jury to decide

25. Impact of ADAAA  Disability threshold will be much lower  Cases will focus on:  Discrimination analysis  Has employer reasonably accommodated individual

26. Impact of ADAAA on Employers  Harder for businesses to defend claims due to increased protected class  Expect to see dramatic increase in accommodation requests and litigation  Increased exposure to significant damages

27. Best Practices  Given the ADAAA, many Americans will meet the definition of disability & qualify for the Act’s protection  Employers need to reevaluate current policies and hiring practices  Companies should train HR professionals, managers, supervisors, etc., on the importance of the ADAAA  Management must exercise greater care when making personnel decisions for employees with health impairments or medical conditions

28. Questions?

29. For Further Information Contact William Barrett at wbarrett@williamsmullen.com @williamsmullen.com or Heath Galloway at hgalloway@williamsmullen.com @williamsmullen.com