final adaaa regulations: what california employers must know – and do – to comply thursday,...

Final ADAAA Regulations:What California Employers Must Know –

and Do – To Comply

Thursday, April 28, 2011Presented by the Employer Resource Institute

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About Our SpeakerKristine E. Kwong, Esq., is a partner in the Los Angeles office of the law firm Musick, Peeler & Garrett, LLP.

She advises and counsels clients on a wide range of business and employment issues, and her practice includes the drafting and updating of handbooks, policy manuals, codes of conduct, and severance packages. She regularly produces and presents training programs for employers on current issues of employment law, and she's a longtime popular speaker for BLR.

Kristine earned her law degree from the University of the Pacific (McGeorge School of Law).

[email protected]

www.mpglaw.com

Final ADAAA Regulations:What California

Employers Must Know – and Do – to Comply

Kristine E. Kwong, Esq.

Musick, Peeler & Garrett, LLP

[email protected]

What We’ll Cover Today

Copyright 2011 BLR Inc.

I. The Americans with Disabilities Act at a Glance

II. The Final ADAAA Regulations

A. Expanded definition of “disability”

B. Nine “rules of construction”

C. Impairments that are “virtually always” disabilities

D. Concepts of “condition, manner or duration” in assessing substantial limitations in major life activities

E. Six-month definition of “transitory” as it replies to “regarded as” disabilities

III. Additional Disability-Related Issues

© Business & Legal Reports, Inc. 0904

ADA at a Glance•1 in 6 Americans have a

disability

•1986 Civil Rights bill

•1990 ADA

•2008 Amendment Act

•Other disability rights laws

For more info:800-514-0301 (V)

800-514-0383 (TDD)www.ada.gov

http://www.ada.gov/


“No covered entity shall discriminate against

a qualified individual on the basis of

disability in regard to job application

procedures; the hiring, advancement, or

discharge of employees; employee

compensation; job training; and other terms,

conditions, and privileges of employment.”

The Act


ADA Applies to:• Covered employers

• Eligible employees


The ADA Amendments ActADAAA's purpose: "Reinstate a broad scope of protection" by expanding the definition of the term "disability" to include many types of impairments that were inappropriately left of the definition under the ADA

Result: Much easier now for workers to demonstrate that they have a "disability" under ADAAA standards!

The Final ADAAA Regs


On March 24, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) published in the Federal Register the final regulations implementing the ADAAA. (They take effect officially on May 24, 2011.)

These final regs reflect the ADAAA’s broader definition of "disability." As a result, more individuals will have covered disabilities and qualify for protection under the ADA.

For employers, this generally means shifting their approach from one that focuses on verifying that a person has an ADA disability to one that uses the interactive process to see if there's an effective accommodation that will allow an employee to perform the essential functions of his or her job.



Under the ADA, employers also must provide reasonable accommodations that allow job applicants to participate in the application process and that allow employees with disabilities to enjoy the "benefits and privileges of employment" equal to those enjoyed by similarly-situated employees without disabilities (e.g., training, social functions).

The EEOC has also revised its interpretive guidance which explains the regulations. The guidance is used by the EEOC when resolving disability discrimination charges, so it gives employers a good idea of what the EEOC will be looking for when it analyzes an ADA claim. (We've included copies of this EEOC guidance as part of your handout materials.)

According to the EEOC, the primary focus in ADA cases should be whether employers have complied with their obligations under the ADA and whether discrimination has occurred, not whether the individual meets the definition of disability. Determining whether an individual meets the definition of disability under the ADA "should not demand extensive analysis."

FEHA vs. ADA/ADAAA


Here's the good news for California employers trying to decipher and comply with these brand-new final ADAAA regs:

Because California's statutes governing disabilities in the workplace

were already more stringent than the federal ADA standards,

you may already be in compliance with these new rules

if you're currently in compliance with California standards!

Many of the provisions in these final ADAAA regs mirror closely what's covered in the disability discrimination provisions of the California Fair Employment and Housing Act (FEHA), as well as the recently proposed state regulation revisions that would further expand FEHA coverage in this area.

FEHA vs. ADA/ADAAA


Keep in mind, though, these key differences between the new ADAAA regs and existing California rules:

• The ADA and ADAAA apply only to employers who have 15 or more employees - but, employers in California with as few as five employees are subject to FEHA.

• The ADA incorporates caps on damages authorized by the Civil Rights Act of 1991 - but, FEHA does not have a similar damages cap.

• Under ADA, there is no separate cause of action for failing to engage in the interactive process - but, under FEHA, your workers may sue you claiming you did not engage in a good-faith interactive process for determining whether reasonable accommodations were feasible.

• Like the ADA, FEHA doesn't consider mitigating measures in determining whether an impairment limits a major life activity, but (unlike the new ADAAA regs) FEHA is silent on whether ordinary eyeglasses or contacts are included in such mitigating measures (although the proposed new FEHA regs would include them).

FEHA vs. ADA/ADAAA


Remember that FEHA specifically states that, if the ADA's provisions are broader than FEHA's provisions, the ADA (and, by extension, the ADAAA) controls.



These final ADAAA regulations contain five key changes from previous ADA rules:

1. They expand the definition of "disability."

2. They introduce nine "rules of construction" that you must use to determine whether an impairment substantially limits a major life activity - and, the term "substantially limits" will now be interpreted broadly.

3. Using the nine rules of construction, some impairments will now "virtually always" be a disability.

4. You should use the concepts of "condition, manner, or duration" as you evaluate whether an individual is substantially limited in a major life activity.

5. A new six-month definition of "transitory" now applies exclusively to "regarded as" disabilities.



THE DEFINITION OF “DISABILITY”

There is a three-pronged definition of the term “disability”:

• A physical or mental impairment that substantially limits a major life activity (“actual disability”)

• A record of such an impairment (a “record of” disability)

• Being regarded as having an impairment (a “regarded as” disability)

• impairment § 1630.2(h)

A physical impairment includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.




A mental impairment includes any mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

The EEOC’s interpretive guidance explains that pregnancy itself is not an impairment. However, a pregnancy-related impairment can be a disability if it is covered by one of the three prongs of the disability definition.




Major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working; and the operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. The operation of a major bodily function includes the operation of an individual organ within a body system.

“Interacting with others” was retained in the final regulations as a major life activity despite assertions that the EEOC exceeded its authority by adding it as an activity.




The regulations expressly reject the standard established by the Supreme Court in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) that an activity must be of “central importance to most people’s daily lives” to be a major life activity.

The regulations also state that the term “major” does not create a demanding standard for disability and should not be interpreted strictly.



RULES OF CONSTRUCTION

These final regulations provide nine “rules of construction” that must be applied to determine whether an impairment substantially limits a major life activity.

The regulations clarify that this analysis is not relevant when determining coverage under the “regarded as” prong of the disability definition (an impairment isn’t required to substantially limit a major life activity to be covered as a “regarded as” disability).




Rule # 1:

The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard.




Rule # 2:

An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment will constitute a disability within the meaning of this section.

The EEOC noted that “substantially limits” is intended to be a lower threshold than “prevents” or “severely or significantly restricts” as prior Supreme Court decisions and EEOC regulations had defined the term.




Rule # 3:

The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether an individual’s impairment substantially limits a major life activity.

Accordingly, the threshold issue of whether an impairment “substantially limits” a major life activity should not demand extensive analysis.




Rule # 4:

The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.

However, in making this assessment, the term “substantially limits” must be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADAAA.




Rule # 5:

The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis.

The regulations, however, do not prohibit the presentation of scientific, medical, or statistical evidence to make such a comparison where appropriate.




Rule # 6:

The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. However, the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

Under the amended ADA, employers cannot consider the ameliorative effects of mitigating measures (i.e., medication or a device that improves an impairment) when determining whether an impairment is a disability. For example, an employer may not consider an individual's use of insulin to control his diabetes when determining whether the diabetes substantially limits the major life activity of eating.




Rule # 6:

According to the EEOC’s interpretive guidance, non-ameliorative effects may be considered in determining whether an impairment is substantially limiting. Non-ameliorative effects include negative side effects of medicine, burdens associated with following a particular treatment regimen, and complications that arise from surgery.




Rule # 7:

An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.




Rule # 8:

An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.




Rule # 9:

The six-month “transitory” part of the “transitory and minor” exception to “regarded as” coverage does not apply to the definition of “actual disability” or “record of disability.” The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.

The EEOC declined to set a six-month minimum for the “actual disability” or “record of disability” that would match the definition of “transitory” for a “regarded as disability.” It also declined to set any minimum duration, citing a statement by the ADAAA’s sponsors that impairments that last only a short period may be covered if sufficiently severe.



IMPAIRMENTS THAT ARE “VIRTUALLY ALWAYS” DISABILITIES

Instead of the “per se” disabilities that were listed in the proposed regulations, the final regulations provide that some impairments, given their inherent nature, will virtually always be actual disabilities. Although the individualized assessment required under the ADA may be used for analysis, these impairments should require only a “simple and straightforward” assessment to determine whether they are covered disabilities. The regulations include examples of impairments that should easily qualify as “actual” or “record of” disabilities.

The rules of construction are intended to provide for more generous coverage and application of the ADA’s prohibition on discrimination through a framework that is predictable, consistent, and workable for all individuals and entities with rights and responsibilities under the ADA as amended.




The individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage under the “actual disability” prong or the “record of” prong. Given their inherent nature, these types of impairments will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity. Therefore, with respect to these types of impairments, the necessary individualized assessment should be particularly simple and straightforward.




According to the regulations, it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated:

• Deafness substantially limits hearing.

• Blindness substantially limits seeing.

• An intellectual disability (formerly termed mental retardation) substantially limits brain function.

• Partially or completely missing limbs or mobility impairments requiring the use of a wheelchair substantially limit musculoskeletal function.

• Autism substantially limits brain function.

• Cancer substantially limits normal cell growth.




• Cerebral palsy substantially limits brain function.

• Diabetes substantially limits endocrine function.

• Epilepsy substantially limits neurological function.

• Human Immunodeficiency Virus (HIV) infection substantially limits immune function.

• Multiple sclerosis substantially limits neurological function.

• Muscular dystrophy substantially limits neurological function.

• Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function.

The types of impairments described in these slides may substantially limit additional major life activities not explicitly listed above.



CONCEPTS OF “CONDITION, MANNER, OR DURATION”

The EEOC retained these concepts in final regulations in response to comments received on the proposed regulations issued in 2009. The EEOC recognized that they may be useful in evaluating whether an individual is substantially limited in a major life activity and included examples to describe what the terms mean.

Thus, in determining whether an individual is substantially limited in a major life activity, it may be useful to consider, as compared to most people in the general population: the condition under which the individual performs the major life activity; the manner in which the individual performs the major life activity; and/or the duration of time it takes the individual to perform the major life activity.




Consideration of facts such as condition, manner, or duration may include, among other things, consideration of the difficulty, effort, or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; and/or the way an impairment affects the operation of a major bodily function. In addition, the non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual’s impairment substantially limits a major life activity.

In determining whether an individual has a disability under the “actual disability” or “record of” prongs of the definition of disability, the focus is on how a major life activity is substantially limited, and not on what outcomes an individual can achieve. For example, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in the major life activity of learning because of the additional time or effort he or she must spend to read, write, or learn compared to most people in the general population.




Given the rules of construction, it may often be unnecessary to conduct an analysis involving most or all of these types of facts. This is particularly true with respect to impairments which by their inherent nature should be easily found to impose a substantial limitation on a major life activity, and for which the individualized assessment should be particularly simple and straightforward.

Examples of mitigating measures include medication, medical supplies, equipment, or appliances, low-vision devices (defined as devices that magnify, enhance, or otherwise augment a visual image, but not including ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aid(s) and cochlear implant(s) or other implantable hearing devices, mobility devices, and oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or “auxiliary aids or services;” learned behavioral or adaptive neurological modifications; or psychotherapy, behavioral therapy, or physical therapy.




Psychotherapy, behavioral therapy, and physical therapy were added to the final regulations as mitigating measures. The listing of “surgical interventions, except for those that permanently eliminate an impairment” was removed as a mitigating measure. The EEOC advises making assessments regarding surgical intervention on a case-by-case basis.

The EEOC added information regarding learning disabilities to the interpretive guidance. The information clarifies that although learning disabilities may be diagnosed in terms of the difference between an individual’s aptitude and achievement, a comparison to “most people” can be made as well. The guidance rejects the assumption that person who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking.




Under the regulations, an individual has a “record of disability” if he or she has a history of a mental or physical impairment that substantially limits a major life activity, or has been misclassified as having such an impairment. The rules of construction apply when analyzing whether an impairment substantially limited a major life activity.

Employers are required to provide reasonable accommodation if needed and if related to the past disability. The regulations provide the example of an employee with an impairment that previously limited, but no longer substantially limits, a major life activity who may need leave or a schedule change to permit him or her to attend follow-up or “monitoring” appointments with a health care provider.



SIX-MONTH DEFINITION OF “TRANSITORY”

Under the amended ADA, an applicant or employee who is subjected to an action prohibited by the ADA (e.g., failure to hire, denial of promotion, or termination) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is both “transitory and minor.” The EEOC commented that this prong should be “the primary means of establishing coverage in ADA cases that do not involve reasonable accommodation.” If an applicant or employee doesn’t need an accommodation, this is the prong to use to evaluate whether discrimination has occurred.

An individual has a “regarded as disability” if he or she is subjected to a prohibited action because of an actual or perceived physical or mental impairment. It doesn’t matter whether or not the impairment substantially limits, or is perceived to substantially limit, a major life activity (i.e., it doesn’t matter if the employer believes the person has an ADA disability). Prohibited actions include but are not limited to refusal to hire, demotion, placement on involuntary leave, termination, exclusion for failure to meet a qualification standard, harassment, or denial of any other term, condition, or privilege of employment.



SIX-MONTH DEFINITION OF “TRANSITORY”

An individual is “regarded as having such an impairment” any time a covered entity takes a prohibited action against the individual because of an actual or perceived impairment, even if the entity asserts, or may or does ultimately establish, a defense to such action. The EEOC notes that a finding of coverage under the “regarded as” prong does not necessarily mean a finding of liability. The individual must prove all the elements of a discrimination claim (e.g., he or she was qualified for the position). In addition, an employer may show that the impairment was “transitory and minor” as a defense (see details in Defenses § 1630.15, below).

The regulations make clear that reasonable accommodation is not required for an individual who meets the definition of disability solely under the “regarded as” prong.

Additional Issues


“QUALIFIED” INDIVIDUALS

The final ADAAA regs state that an individual with a disability is qualified if he or she satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.

Additional Issues


DISCRIMINATION PROHIBITIONS

In the final regs, employers are expressly prohibited from discriminating on the basis of disability in any term, condition, or privilege of employment, including:

• Recruitment, advertising, and job application procedures

• Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring

• Rates of pay or any other form of compensation and changes in compensation

• Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists

• Leaves of absence, sick leave, or any other leave

Additional Issues


DISCRIMINATION PROHIBITIONS

• Fringe benefits available by virtue of employment, whether or not administered by the covered entity

• Selection and financial support for training, including: apprenticeships, professional meetings, conferences and other related activities, and selection for leaves of absence to pursue training

• Activities sponsored by a covered entity, including social and recreational programs

• Any other term, condition, or privilege of employment

The regulations also expressly state that an individual without a disability cannot bring a claim based on lack of disability, including a claim that an individual with a disability was granted an accommodation that was denied to the individual without a disability.

Additional Issues


QUALIFICATION STANDARDS, TESTS, AND OTHER SELECTION CRITERIA

An employer is prohibited from using qualification standards, employment tests or other selection criteria that screen out or tend to screen out individuals on the basis of disability, unless the standard, test, or other selection criteria, as used by the employer, is shown to be job related and consistent with business necessity.

A covered entity can’t use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criterion, as used by the covered entity, is job related and consistent with business necessity. An individual challenging the application of a qualification standard, test, or other criterion based on uncorrected vision doesn’t have to have an ADA disability, but must be adversely affected by the application of the standard, test, or other criterion.

What Should You Do?


FOUR KEY STEPS YOU MUST TAKE A.S.A.P. AS AN EMPLOYER

1. Review job descriptions to ensure regulatory compliance - detailing the essential functions in a job description will help ensure that applicants and employees with disabilities are not discriminated against because they cannot perform marginal job duties.

2. Train supervisors and managers about complying with the amended ADA, in particular about the interactive process, requests for accommodation, and types of reasonable accommodation. Training supervisors not to retaliate in response to disability claims or requests for accommodation is also critical.

3. Check recordkeeping processes to ensure adequate documentation of accommodation requests, steps in the interactive process, and reasons for granting/denying an accommodation request.

4. Check equal employment/nondiscrimination policies to make sure they comply with the amended ADA and regulatory requirements.

Questions?

Kristine E. Kwong, Esq.

Musick, Peeler & Garrett, LLP

One Wilshire Boulevard, Suite 2000

Los Angeles, CA 90017

213.629.7977 (phone)

213.624.1376 (fax)

[email protected]

www.mpglaw.com



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