IPMA-HR 2009 EASTERN REGION’S TRAINING AND DEVELOPMENT CONFERENCE October 4-7, 2009 Margaret J. Strange

IPMA-HR 2009 EASTERN REGION’S TRAINING AND DEVELOPMENT CONFERENCE

October 4-7, 2009

Margaret J. Strange

Copyright 2009 Jackson Lewis LLP 2

THE ADA of 1990

• The ADA was meant to:• Provide a clear and comprehensive national

mandate for the elimination of discrimination

against individuals with disabilities and provide

broad coverage

• However, as a result of several Supreme Court

decisions and the EEOC’s interpretation of the

law, the initial intended protected became less

broad


THE ADAAA

• Legislative history• The final version of the ADAAA was signed by

President Bush on September 25, 2008

• Went into effect on January 1, 2009

• Congressional purpose in enacting the ADAAA• To reinstate a broad scope of protection

• And to reject the Supreme Court decisions that

had narrowed the ADA’s protection


• The definition of disability must be construed in favor of

broad coverage of individuals, to the maximum extent

permitted by the ADA.

• An impairment that is episodic or in remission is a disability if

it would substantially limit a major life activity when active.

• The term ‘substantially limits’ shall be interpreted

consistently with the findings and purposes of the ADA

Amendments Act of 2008.

• EEOC’s current regulations interpreting the term express too

high a standard.

ADAAA – DEFINITION OF “DISABILITY’


• The ADAAA directs the EEOC to revise its regulations

interpreting “substantially limits.”

• Presently, EEOC regulations provide that “substantially

limits” means the individual is unable to perform a

major life activity or is significantly restricted as to the

condition, manner or duration under which an individual

can perform a particular major life activity as compared

to the condition, manner, or duration under which the

average person in the general population can perform

that same major life activity.

• It is unclear precisely what the EEOC’s revised standard

will be, but it will certainly be more lenient than the

current one.

IMPACT: THE EEOC WILL LOWER THE STANDARD TO BE DISABLED


• Except for ordinary eyeglasses and contact lenses, the

ADAAA prevents courts and employers from considering

mitigating measures an individual may be using when

determining whether the individual is disabled.

• Therefore, it is quite likely that tens of millions of

individuals with conditions such as diabetes, high blood

pressure, carpel tunnel syndrome and cancer will have a

“disability” under the ADA.

• This then places an affirmative obligation on employers

to provide a reasonable accommodation.

• IMPACT: It will be harder to get cases dismissed

at an early stage and courts will focus more on

the interactive process and meaning of

“reasonable accommodation”

NO CONSIDERATION OF MITIGATING MEASURES


Reasonable AccommodationsReasonable Accommodations

• An employer has a duty to reasonably accommodate an employee’s disability if the employer knows or reasonably should know that the employee was disabled. Brady v. Wal-Mart Stores, Inc., 531 F.3d 127 (2d Cir. 2008).• In Brady, the employee had cerebral palsy

and walked with a limp and had recognizably slower speech.

• He alleged that Wal-Mart failed to reasonably accommodate his disability. Wal-Mart argued that the employee never requested such accommodations.

• Court noted that Wal-Mart was obligated to engage in an “interactive process” with the employee to determine whether his disability could have been reasonably accommodated.


Interactive ProcessInteractive Process

• Dialogue between an employer and an employee where the parties work together to determine whether the employer can reasonably accommodate the employee’s disability.

• An employee may establish that an employer failed to engage in the interactive process in good faith by showing that:• The employer knew about the employee’s

disability; • The employee requested accommodations or

assistance for his or her disability; • The employer did not make a good faith effort

to assist the employee in seeking accommodations; and

• The employee could have been reasonably accommodated but for the employer’s lack of good faith.



• Employer’s inaction and statements of its human resources personnel suggested that there was inadequate interactive process. McBride v. City of Detroit, No. 07-12794 (E.D. Mich. Nov. 25, 2008).

• Plaintiff had sensitivity to perfumes and requested accommodation, including a policy that limited the use of scents in the workplace.

• HR representatives made statements such as: “If she’s allergic to perfumes and colognes

then she has the problem not the employer.” “The problem is [Plaintiff] and her symptoms.” “HR’s position is to limit the contact between

the employees.”



• To demonstrate good faith, an employer should: meet with the employee who requests an accommodation; request information about the condition and what limitations the employee has; ask the employee what he or she specifically wants; consider the employee’s request, and discuss available alternatives if the request is too burdensome. Ellis v. Ethicon, Inc., No. 05-726 (D.N.J. Mar. 28, 2008).• The Court held that the employer failed to

properly engage in the interactive process.• The court reasoned that no one at the

employer met with the employee once they received notice from two doctors that the employee would need certain accommodations. Additionally, no one requested information regarding the employee’s condition and reasons for the doctors’ recommendation.

• Employer offer of a part-time position on a take-it-or-leave basis failed to demonstrate good faith.


EEOC Guidance on Applying Performance and EEOC Guidance on Applying Performance and Conduct Standards to Employees with Conduct Standards to Employees with

DisabilitiesDisabilities• EEOC Guidance Issued September 2008. (

http://www.eeoc.gov/facts/performance-conduct.html)

• Performance management, if done effectively, can help avoid discrimination, in addition to furthering an employer’s business objectives.

• What steps are appropriate when a disability is causing a performance issue? • An employer might have to provide a

reasonable accommodation to enable an employee with a disability to understand the exact nature of any performance issue.

• If an employee states that her disability is the cause of the performance problem, the employer should follow up by making clear what level of performance is required and ask why the employee believes the disability is affecting performance.

• The employer should ask whether there is an accommodation that may help raise the employee’s performance level.


• The most profound change to the ADA is the definition

of an individual “regarded as” having a disability.

• There has been very little litigation in this area, and

even fewer cases decided in favor of a plaintiff.

• Before the ADAAA, an employee would have to prove

either the employer mistakenly regarded him or her as

having an impairment that substantially limited a

major life activity or the employer mistakenly believed

that an actual impairment substantially limited that

employee.

“REGARDED AS” CLAIMS WILL BE MORE DIFFICULT TO DEFEND


• The ADAAA holds an employer liable under a “regarded

as” theory if the individual can show discrimination

because of an actual or perceived physical or mental

impairment, whether or not the impairment actually

limits or is perceived to limit a major life activity.

• Plaintiffs now only need to prove that adverse action

was taken as a result of mistaken belief about an

impairment.

• Plaintiffs only need to establish that the employer had

a mistaken belief about the individual’s ability to

perform his or her job, not a broad class of jobs or

other major life activities.

“REGARDED AS” CLAIMS WILL BE LIKELY TO INCREASE AND BE MORE DIFFICULT TO

DEFEND


THE IMPACT OF THE ADAAA

• The EEOC will have the final determination regarding

the definition of disability

• Expect arguments in court that the changes

established by the ADAAA should be applied to state

disability discrimination laws

• Expect plaintiffs in the midst of a lawsuit to argue

that the ADAAA applies to their cases even though

the alleged violation occurred before 01/01/2009


WHAT SHOULD EMPLOYERS DO?

• If you have not already, revisit issues addressed prior

to the ADAAA’s enactment, including:

• Job descriptions

• Handbook review

• Procedures regarding reasonable accommodation

• Forms/templates

• Training


FMLA DevelopmentsFMLA Developments


FMLA Cases

• Johnson v. Kmart, 2009 U.S. Dist. LEXIS 7698 (E.D. Mich. Jan. 7, 2009)• Michigan federal court denied summary

judgment for employer where employee was terminated for exceeding allowed absences under policy after he left work to care for son whose eye was injured by a dog

• Employer argued that son’s eye condition was not a “serious health condition” because record did not show he was incapacitated for more than three days

• To establish a “serious health condition” under the FMLA, employee only needs to demonstrate the injury appeared “likely” to lead to more than three days of incapacitation without medical attention


FMLA Cases

• Brown v. Nutrition Management Services Co., 2009 U.S. Dist. LEXIS 4199 (E.D. Pa. Jan. 21, 2009)• Employer fired employee after she disclosed

she was pregnant• Employer had relied on HR representative’s

determination that the employee was not eligible for FMLA because she was on probation, although she had worked for 12 months

• Employer did not, however, attempt to determine whether her status on probation would actually affect her FMLA status under the law

• Finding the employer acted in bad faith, the court doubled jury award for the employee


FMLA Cases

• Bryant v. Dollar General Corp., 538 F.3d

394 (6th Cir. 2008)

• Employer argued that, because the FMLA

does not explicitly protect employees

from retaliation, employees cannot bring

FMLA retaliation claims

• After examining the FMLA and its

regulations, the Sixth Circuit rejected the

employer’s argument


Revised FMLA Regulations

• Revised regulations are over 750 pages

• They became effective on January 16,

2009

• Provide employers new tools to

administer FMLA more efficiently

• Overarching theme of the regulations is

“shared responsibility”


Family and Medical Leave Act

General Notice Obligations Enhanced

• Covered employers must post a general FMLA notice even when they have no FMLA-eligible employees

Note: To be eligible, an employee must have 12 months of service with employer, which is now measured over 7 years

• Electronic posting satisfies requirement, assuming all employees have access


Changes to Employee Notice Requirements

• Employees must explain reasons for

leave in a manner that allows an

employer to determine whether the

leave qualifies under the Act

• Employees can be required to comply

with customary requirements for

requesting leave




Changes to Employer Notice Requirements• Employers must notify employees of their

eligibility to take leave, as well as their rights and responsibilities, within 5 business days of being put on notice of a FMLA-qualifying reason

• Employers must provide certification form for employees to give to their health care provider

• Requires greater detail regarding nature and duration of FMLA-qualifying illness/injury

• Employers must provide notice to employees confirming leave designation and amount of leave within 5 business days of receiving medical certification

• DOL has issued sample forms to assist employers with these requirements



New Rules Governing Medical Certifications• Initial Medical Certification

• If condition extends beyond a leave year, certifications can be requested annually

• Recertification may be requested for continuing, open-ended conditions every 6 months

• Where a medical certification is deficient:• Employers must notify employees in

writing of the additional information necessary to make a certification complete

• Employees have 7 calendar days to cure deficiencies



Changes: Fitness for Duty Certifications• Employers may demand more than a

“simple statement” of the ability to return to work

• Fitness for duty certifications for intermittent leave may be sought if reasonable safety concerns exist

Intermittent Leave Issues• Minimum duration may be shortest period

of time used to account for other leaves (but cannot exceed one hour)

• Employers are obligated to track intermittent leave and inform employees of amount of leave available



Clarification of What Counts as FMLA Leave • Required overtime counts against FMLA

leave entitlement

• Light duty does not count against FMLA entitlement

Increased damages available• Where an employee interferes with FMLA

leave rights• Employee may recover “any other relief

tailored to the harm suffered” (among other damages)


Military Family Leave

“Qualifying Exigency” • An eligible employee may take up to 12

weeks of leave due to a “qualifying exigency” where the employee’s spouse, son, daughter or parent is on active duty

• Includes attending military events, meetings to make financial arrangements, counseling

Leave to care for servicemember• An eligible employee may take up to 26

weeks of leave to care for a seriously injured or ill servicemember

• Employee must be “next of kin” to servicemember (broad definition)


MARGARET J. [email protected]

ANY QUESTIONS?

Documents

IPMA-HR 2009 EASTERN REGION’S TRAINING AND DEVELOPMENT CONFERENCE October 4-7, 2009 Margaret J. Strange