adaaa and the new eeoc regulations - tmhra · adaaa and the new eeoc regulations april 27, 2012 by:...

© Denton, Navarro, Rocha & Bernal, P.C. -2012 1

ADAAA AND THE NEW ADAAA AND THE NEW EEOC REGULATIONSEEOC REGULATIONS

April 27, 2012April 27, 2012

By: Alan T. Ozuna and Elizabeth M. ProvencioBy: Alan T. Ozuna and Elizabeth M. Provencioyyaozuna@[email protected]

[email protected]@rampage--sa.comsa.comDenton, Navarro, Rocha & BernalDenton, Navarro, Rocha & Bernal

A Professional CorporationA Professional Corporation701 E. Harrison, Ste. 100, Harlingen, Texas 78550701 E. Harrison, Ste. 100, Harlingen, Texas 78550

956.421.4904 Phone / 956.421.3621 Facsimile956.421.4904 Phone / 956.421.3621 Facsimile

Denton, Navarro, Rocha & Bernal, Denton, Navarro, Rocha & Bernal, P.C. P.C. -- 20122012

Americans with Disabilities ActAmericans with Disabilities Act

Amended September 25 2008 by the ADAAmended September 25 2008 by the ADA Amended September 25, 2008 by the ADA Amended September 25, 2008 by the ADA Amendments Act Amendments Act -- “ADAAA”“ADAAA”

Effective date January 1, 2009Effective date January 1, 2009——not based not based on date of filing of EEOC charge on date of filing of EEOC charge

Final regulations effective 5/24/11Final regulations effective 5/24/11Final regulations effective 5/24/11Final regulations effective 5/24/11



ADAAA and New RegulationsADAAA and New Regulations

ADAAA states “definition of disability inADAAA states “definition of disability in ADAAA states definition of disability in ADAAA states definition of disability in this Act shall be construed in favor of this Act shall be construed in favor of broad coverage”broad coverage” More employees with a “disability”More employees with a “disability”


Disability definedDisability defined

Having a physical or mental impairmentHaving a physical or mental impairment Having a physical or mental impairment Having a physical or mental impairment that substantially limits one or more major that substantially limits one or more major life activitieslife activities

oror Having a record of such an impairmentHaving a record of such an impairmentoror Being regarded as having such an Being regarded as having such an

impairment impairment Denton, Navarro, Rocha & Bernal, Denton, Navarro, Rocha & Bernal,

P.C. P.C. -- 20122012


Protections of ADAAAProtections of ADAAA

Prohibits discriminatory actionsProhibits discriminatory actions Prohibits discriminatory actions Prohibits discriminatory actions (terminations, change in benefits, (terminations, change in benefits, demotions, transfers, suspensions, demotions, transfers, suspensions, disciplinary actions, etc.)disciplinary actions, etc.)

Requires reasonable accommodationRequires reasonable accommodation


To have a “record of”To have a “record of” means:means:

History of orHistory of or History of or History of or misclassified as having misclassified as having such an impairmentsuch an impairment



To be “regarded as” means:To be “regarded as” means:

employer believes the individual has aemployer believes the individual has a employer believes the individual has a employer believes the individual has a disabilitydisability Note former: employer believed impairment Note former: employer believed impairment

substantially limited a major life activitysubstantially limited a major life activity Applies to employment actions (not Applies to employment actions (not

bl d ti )bl d ti )reasonable accommodations)reasonable accommodations)29 CFR 1630.2(1)29 CFR 1630.2(1)


Major Life ActivitiesMajor Life Activities

Old Definition:Old Definition:

Those basic activities that the average person in the general population can Those basic activities that the average person in the general population can perform with little or no difficulty, including functions such as caring for perform with little or no difficulty, including functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.breathing, learning, and working.

New EEOC Definition:New EEOC Definition:E d t diti l li t f MLAE d t diti l li t f MLA-- Expands traditional list of MLAsExpands traditional list of MLAs

-- Adds new nonAdds new non--exhaustive list of Major Bodily Functions (MBFs)exhaustive list of Major Bodily Functions (MBFs)-- Clarified that only one MLA/MBF is neededClarified that only one MLA/MBF is needed



Major Life ActivitiesMajor Life Activities

caring for oneselfcaring for oneselfggseeingseeingeatingeatingwalkingwalkingsitting sitting liftingliftingspeakingspeakinglearninglearninglearninglearningconcentratingconcentratingcommunicatingcommunicatinginteracting with othersinteracting with others

29 CFR 1630.2(h)(2)(i)(1)29 CFR 1630.2(h)(2)(i)(1)Denton, Navarro, Rocha & Bernal, Denton, Navarro, Rocha & Bernal,

P.C. P.C. -- 20122012

Major life activitiesMajor life activities

performing manual tasksperforming manual taskshearinghearingsleepingsleepingstandingstandingreaching reaching bendingbendingbreathingbreathingreadingreadingthinkingthinkingworkingworkingworkingworking

29 CFR 1630.2(h)(2)(i)(1)29 CFR 1630.2(h)(2)(i)(1)



Major life activities now includes Major life activities now includes Major Bodily Functions (MBF)Major Bodily Functions (MBF)

functions of the immune systemfunctions of the immune system functions of the immune systemfunctions of the immune system cell growthcell growth digestive, bladder, and bowel functionsdigestive, bladder, and bowel functions neurological and brain functionsneurological and brain functions respiratory and circulatory functionsrespiratory and circulatory functions endocrine functionsendocrine functions endocrine functionsendocrine functions reproductive functionsreproductive functions

29 CFR 1630.2(h)(2)(i)(2) 29 CFR 1630.2(h)(2)(i)(2) Denton, Navarro, Rocha & Bernal, Denton, Navarro, Rocha & Bernal,

P.C. P.C. -- 20122012

Major life activities now includes Major life activities now includes Major Bodily Functions (MBF)Major Bodily Functions (MBF)

hemichemic hemic hemic lymphatic lymphatic musculoskeletal musculoskeletal special sense organs and skinspecial sense organs and skin genitourinarygenitourinaryg yg y cardiovascularcardiovascular

29 CFR 1630.2(i)(2) 1630.2(h)29 CFR 1630.2(i)(2) 1630.2(h)Denton, Navarro, Rocha & Bernal, Denton, Navarro, Rocha & Bernal,

P.C. P.C. -- 20122012


Examples:Examples:

Kidney disease = bladder functionKidney disease = bladder function Kidney disease = bladder functionKidney disease = bladder function Cancer = cell growthCancer = cell growth Diabetes = endocrine systemDiabetes = endocrine system Epilepsy, Parkinson’s = neurological Epilepsy, Parkinson’s = neurological

functionsfunctionsfunctionsfunctions HIV AIDS = immune systemHIV AIDS = immune system Sickle cell = hemicSickle cell = hemic Rheumatoid arthritis = musculoskeletalRheumatoid arthritis = musculoskeletalDenton, Navarro, Rocha & Bernal, Denton, Navarro, Rocha & Bernal,

P.C. P.C. -- 20122012

“substantially limit”“substantially limit”

Old Definition:Old Definition:The term "substantially limits" means: (i) Unable to perform a major life The term "substantially limits" means: (i) Unable to perform a major life

activity that the average person in the general population can perform; or activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.the general population can perform that same major life activity.

New Definition:New Definition:New Definition:New Definition:The terms substantially limits means an impairment substantially limits the The terms substantially limits means an impairment substantially limits the

ability of an individual to perform a major life activity as compared to most ability of an individual to perform a major life activity as compared to most people in the general population.people in the general population.



“substantially limit”“substantially limit”

Comparison with “most peopleComparison with “most people Comparison with “most people Comparison with “most people in the general population” in the general population” –– common common sense standard without resorting to sense standard without resorting to scientific or medical devicesscientific or medical devices

≠significantly≠significantly≠significantly≠significantly≠severely restrict≠severely restrict29 CFR 1630.2(j)(1), 29 CFR 1630.2(j)(2)(iv)29 CFR 1630.2(j)(1), 29 CFR 1630.2(j)(2)(iv)


Determination of whether an impairment Determination of whether an impairment substantially limits a major life activity must be substantially limits a major life activity must be made without regard to mitigating measuresmade without regard to mitigating measures

medicationmedicationmedicationmedicationprostheticsprostheticsmobility devicesmobility deviceslow vision deviceslow vision devicesbehavioral modificationsbehavioral modificationssurgical interventions surgical interventions

29 CFR 1630.2(j)(3)(ii)(A) )29 CFR 1630.2(j)(3)(ii)(A) )



Determination of whether an impairment Determination of whether an impairment substantially limits a major life activity must be substantially limits a major life activity must be made without regard to mitigating measuresmade without regard to mitigating measures

medical equipmentmedical equipmenthearing aidshearing aidsoxygen equipmentoxygen equipmentreasonable accommodationsreasonable accommodations

Note: Exception for eyeglasses and contact lensesNote: Exception for eyeglasses and contact lenses29 CFR 1630.2(j)(3)(ii)29 CFR 1630.2(j)(3)(ii)


ExceptionException----Minor and Transitory Minor and Transitory Impairments: Not Considered Impairments: Not Considered

Substantially LimitingSubstantially Limiting Temporary nonTemporary non--chronic impairments withchronic impairments with Temporary, nonTemporary, non chronic impairments with chronic impairments with

little residual effectslittle residual effectscommon coldcommon coldminor nonminor non--chronic gastrointestinal dischronic gastrointestinal dis--orders orders fl d l llfl d l llflu, sprained joints, seasonal allergiesflu, sprained joints, seasonal allergies



An Impairment That is Episodic or An Impairment That is Episodic or In RemissionIn Remission

disability even when inactive “if it woulddisability even when inactive “if it would disability even when inactive if it would disability even when inactive if it would substantially limit a major activity when active”substantially limit a major activity when active”

epilepsyepilepsy hypertensionhypertensionbipolar disorderbipolar disorder MSMSschizophreniaschizophrenia asthmaasthmacancercancer depressiondepressionPostPost--traumatic stress disordertraumatic stress disorder


“Per se” Disabilities“Per se” Disabilities

Predictable assessmentPredictable assessment –– inherent natureinherent nature Predictable assessment Predictable assessment –– inherent nature inherent nature of condition results in “disability”of condition results in “disability”

Focus is not on individualized assessmentFocus is not on individualized assessment



Conditions consistently meeting Conditions consistently meeting definition of “disability”definition of “disability”

Deafness, blindness, intellectual disability, partially orDeafness, blindness, intellectual disability, partially orDeafness, blindness, intellectual disability, partially or Deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring completely missing limbs, mobility impairments requiring the use of a wheelchairthe use of a wheelchair

AutismAutism CancerCancer Cerebral palsyCerebral palsy DiabetesDiabetes EpilepsyEpilepsy HIV or AIDSHIV or AIDS Multiple sclerosis and muscular dystrophyMultiple sclerosis and muscular dystrophy Major depression, bipolar disorder, postMajor depression, bipolar disorder, post--traumatic stress traumatic stress

disorder, obsessive compulsive disorder or schizophreniadisorder, obsessive compulsive disorder or schizophreniaDenton, Navarro, Rocha & Bernal, Denton, Navarro, Rocha & Bernal, P.C. P.C. -- 20122012

Impairment substantially limits Impairment substantially limits “working”“working”

FormerFormer——class or broad range of jobsclass or broad range of jobs FormerFormer——class or broad range of jobsclass or broad range of jobs NewNew——type of work type of work



Reasonable AccommodationsReasonable Accommodations

The ADAAA does not change the definition of reasonable The ADAAA does not change the definition of reasonable accommodation or address specific issues relating to reasonable accommodation or address specific issues relating to reasonable accommodationaccommodation

BUT...BUT...

Because of broader definition of “disability,” employers likely will Because of broader definition of “disability,” employers likely will have to provide accommodations to larger group of applicants have to provide accommodations to larger group of applicants and employees (except for individuals only “regarded as” having and employees (except for individuals only “regarded as” having a disability)a disability)


Reasonable AccommodationsReasonable Accommodations

Request for accommodation:Request for accommodation:Employee must request except where employer knows or should know that Employee must request except where employer knows or should know that

employee has a mental or physical disability that is interfering with his employee has a mental or physical disability that is interfering with his performance of job tasks performance of job tasks

Does not have to be in writingDoes not have to be in writinggg

Does not have to use “magic words”Does not have to use “magic words”

May come from a third party (family member, doctor)May come from a third party (family member, doctor)



Types of AccommodationsTypes of Accommodations

Making facilities accessibleMaking facilities accessiblePartPart--time or modified work schedulestime or modified work schedulesJob restructuring (through elimination of nonessential functions)Job restructuring (through elimination of nonessential functions)Permitting use of accrued or unpaid leave for treatment, therapy, or Permitting use of accrued or unpaid leave for treatment, therapy, or

training related to disabilitytraining related to disabilityTelecommutingTelecommutingTelecommutingTelecommutingAcquiring assistive devices or modifying existing equipmentAcquiring assistive devices or modifying existing equipmentAdjusting supervisory methodsAdjusting supervisory methodsProviding readers or interpretersProviding readers or interpretersReassignment to a vacant positionReassignment to a vacant position


Accommodations not required:Accommodations not required:

Change or remove an essential functionChange or remove an essential function

Lower production or performance standardsLower production or performance standards

Excuse violation of conduct rules that are workExcuse violation of conduct rules that are work--related related and consistent with business necessityand consistent with business necessity



Interactive ProcessInteractive Process

Employee/applicant initiates processEmployee/applicant initiates process Employee/applicant initiates processEmployee/applicant initiates process Must be meaningful dialogueMust be meaningful dialogue May involve determination of whether May involve determination of whether

there is a disability, but don’t devote there is a disability, but don’t devote much time to thismuch time to thismuch time to thismuch time to this

May request information and require May request information and require employee to provide substantiating employee to provide substantiating documentationdocumentation


Choice of AccommodationChoice of Accommodation

Primary consideration should be given toPrimary consideration should be given to Primary consideration should be given to Primary consideration should be given to the employee’s choicethe employee’s choice

Employer may ultimately choose from Employer may ultimately choose from among accommodations, as long as theamong accommodations, as long as theamong accommodations, as long as the among accommodations, as long as the one provided is effectiveone provided is effective



Undue HardshipUndue Hardship

Employer specific: resources andEmployer specific: resources and Employer specific: resources and Employer specific: resources and circumstancescircumstances

Significant difficulty or expenseSignificant difficulty or expense Unduly disruptiveUnduly disruptive Fundamentally alter the nature orFundamentally alter the nature or Fundamentally alter the nature or Fundamentally alter the nature or

operation of businessoperation of business


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