handling employee medical issues under the adaaa (kjk breakfast briefing: april 12, 2011)

Kohrman Jackson & Krantz P.L.L.Handling Employee Medical Issues Under the Americans with

Disabilities Act Amendment Act of 2008

Sam Strickeny Sam Stricken has worked on an assembly line at the Perilous Pultrusion Company’s

plant for fifteen years. y Five years ago, Stricken was in an automobile accident and injured his back. He

was out on a medical leave of absence for two months. He recovered, was cleared to return to work by his doctor without restriction, and returned to his regular job. His back bothers him from time to time, but he has only taken a few days off as a result of it.

y Two years ago, Stricken suffered a heart attack and had arterial bypass surgery. While his heart muscle was damaged, he did recover from the surgery and, once again, he was cleared to return to work by his doctor without restriction, and returned to his regular job.

y Since the heart attack, Stricken is not as strong as he used to be. When he works for a long time or on a particularly strenuous activity, he suffers shortness of breath and dizziness, and he sometimes develops muscle cramps because of his heart condition. He takes regular medication for his heart.

y In early January, while lifting a package at work, Stricken slipped and fell and twisted his back. Surgery was required to repair his back. He has been out for twelve weeks, and is now ready to return to work.

Old Definition of “Disability” Under the American with Disabilities Act

y A physical or mental impairment that substantially limits one or more of the major life activities of an individual;

y A record of such an impairment; ory Being regarded as having such an impairment.

New Definition of Disability Under the ADAA of 2008

y A physical or mental condition that substantially limits one or more major life activities

y A record of such an impairment; ory Being regarded as having such an impairment.

Amended Definition of “Disability” Under the ADA Amendment Act of 2008y Actual Disability: a physical or mental condition that

substantially limits one or more major life activitiesy Definition of major life activity added.y Lower standard for substantially limits established.

y “Regarded as” Disabledy If an individual is subject to discrimination because of an

actual or perceived physical or mental impairment, it does not matter whether the impairment limits or is perceived to limit a major life activity.

y A record of impairmenty The ADAAA of 2008 makes no change.

Actual Disability Physical or Mental Impairment

y Affects 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.

y Any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Actual Disability Physical or Mental Impairment (cont.)y The definition of “impairment” in the new

regulations is almost identical to the definition in EEOC’s original regulations addressing the ADA, except that the immune and circulatory systems have been added to the list of body systems that may be affected by an impairment, because these systems are specifically mentioned in the ADAAA’sexamples of major bodily functions.

Actual DisabilitySubstantially Limits

y Lower degree of functional impairment than previously used by the Courts under the prior definition of disability.

y To be construed broadly to give maximum effect –now much easier to prove.

y Must apply the Nine Rules of Construction.

The Nine Rules of Construction1. Substantially limits shall be construed broadly and is not meant to

be a demanding standard.2. An impairment is a disability if it substantially limits the ability of an

individual to perform a major life function as compared to most people in the general population.

3. The emphasis should be on whether employer has complied with their obligations and whether discrimination has occurred so substantially limits should not demand excessive analysis.

4. An individualized assessment is required, but should be applied at a degree of functional limitation that is lower than the prior standard for substantially limits.

5. The comparison between an affected individual’s performance and that of most people in the general population usually will not require scientific, medical, or statistical analysis.

Nine Rules (cont.)6. The determination shall be made without regard to ameliorative

effects of mitigation measures (with the exception of eyeglasses and contacts).

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

8. An impairment that substantially limits one major life activity need not substantially limit other activities.

9. The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting for purposes of disability or record of disability (but does not apply to regarded as disabled).

Actual Disability Major Life Activity

y The EEOC has provided a non-exhaustive list of examples of major life activities: 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.

y Major life activities include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, individual organs, and reproductive functions.

“Regarded As”

y An employee is regarded as disabled if the employer makes an employment decision based on an actual or perceived impairment (except where impairment is transitory and minor).

Determining When Disabled

Reasonable Accommodation

What do the Amendments Change?

Actual and historical disabilities-vs-

“Regarded as”

Mitigating measuresand

Direct threat

Interactive Processy Plain Englishy Oral or writteny Requests “on behalf of” county Informal processy Medical documentationy Reasonable ≠ preferredy Timing of response

y Job restructuringy Modified or part-time scheduley Modified workplace policiesy Reassignmenty Telecommutingy Assistive technologyy Leaves of absence

Exemplar Accommodations

Beware Medical Leaves

Undue Hardshipy Nature and cost

y Employer’s resources and size

y Type of operation

y Impact of accommodation

Tying It Together

Takeawaysy Reasonable

accommodation policy

yManager & Supervisor Training

“Regarded As” Disability

1. Definition of “Regarded As”

y ADAAA retains definition of “disability” as including being regarded as having an impairment

y Individual has been subjected to an action prohibited by the ADA as amended because of an actual or perceived impairment that is not both “transitory and minor.”


2. Substantial Impairment of Major Life Activity No Longer Required

y Regarded as having a disability if company takes an action prohibited by the ADA (e.g., termination, demotion…) based on an actual or perceived impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.

y Original ADA required person to show that entity believed the actual or perceived impairment substantially limited performance of a major life activity


y Regarded as any time entity takes a prohibited action against individual because of actual or perceived impairment, even if entity asserts, or is able to establish, a defense to the action


3. “Transitory and Minor” Defense

y If the entity can show impairment is both transitory and minor, then a “regarded as” claim failsy Transitory – an impairment with an actual or expected

duration of 6 months or lessy To prevail, entity must prove that the impairment was

transitory and minor when viewed objectively


4. Reasonable Accommodation

y An employer need not to provide reasonable accommodation to an individual who meets the “regarded as” prong of the definition of disability

y Where individual is not challenging an entity’s failure to make a reasonable accommodation, the evaluation of coverage can be made solely under the “regarded as”prong of the definition


5. Meeting “Regarded As” Prong Is Not The End of the Story

y Meeting the “regarded as” standard does not mean that the entity has discriminated against the individualy Just means that the person is an individual with a

disability entitled to the protections of the ADAy Person still needs to be qualified for the job

y Can perform the essential functions of the joby Entity may have a defense such as direct threat or where

action was required by another federal law (e.g., a law prohibiting a person with certain impairments from holding certain jobs)

y Individual must still prove that entity engaged in unlawful discrimination under ADA; 6th Circuit “but for” standard


6. “Regarded As” Hypothetical

y Sam Stricken returns to work after medical leavey Sam’s work performance deterioratesy Sam is written up, then terminated for poor performancey Sam sues alleging “regarded as” disability discriminationy Analysis

y Alleges “regarded as”y Still has to show qualified (perform essential functions)y Still has to show the decision was made because of his

perceived disability


The Bermuda Triangle

ADA

FMLA WORKERS’COMPENSATION

Why is the Interaction Between These Laws Important?

y The majority of unscheduled and scheduled absences are related to the illness of employees or their family members. One, both, or all three of these laws may be involved.

y Violations of these laws may result in lost wages, back pay, reinstatement, retroactive benefits, compensatory damages, and punitive damages.

Scope and Purpose of Each Law

y The ADA prohibits discrimination against applicants and employees who are “qualified individuals with a disability”.

y The FMLA sets minimum leave standards for employees for the birth and newborn care of a child, placement of a child for adoption or foster care, to care for an immediate family member with a serious health condition, and for the employee’s serious health condition.

y Workers’ Compensation laws provide for payment of compensation and rehabilitation for workplace injuries and minimize employer liability.

Important Areas of Interplay Between the Three Laws Are:

y Employer Coveragey Employee Eligibilityy Length of Leavey Medical Documentationy Restricted or Light Dutyy Fitness-to-Return-to-Work Certificationy Benefits While on Leavey Reinstatement

Employer Coverage

y ADA – 15 or more employees for 20 weeks during current or preceding calendar year (But note: similar Ohio law covers smaller employers).

y FMLA – 50 or more employees within a 75-mile radius for at least 20 weeks during current or preceding calendar year.

y Workers’ Compensation – Applies to most, even small employers. State law governs.

Employee Eligibility

y ADA – an employee (or applicant) who is disabled as defined by the ADA, is qualified for the position and can perform the essential functions of the position with or without a reasonable accommodation.

y FMLA – an employee who has worked at least 12 months and 1250 hours prior to the start of the leave and who works at a worksite where there are 50 or more employees within a 75-mile radius.

y Workers Compensation – an employee who has an injury arising out of or in the course of employment with state law exceptions possible for willful misconduct or intentional self-inflected injuries, willful disregard of safety rules, or intoxication from alcohol or illegal drugs.

Length of Leave

y ADA – No specific limit for the amount of leave that would be provided as a reasonable accommodation that does not create an undue hardship on the employer.

y FMLA – 12 weeks in the 12 month period as defined by the employer.

y Workers’ Compensation – No specific limit for the amount of leave an injured worker may have.

Medical Documentationy ADA – Only medical examinations or inquiries regarding

an employee’s disability that are job-related and limited to determining ability to perform the job and whether an accommodation is needed and would be effective.

y FMLA – Medical certification of the need for the leave not to exceed what is requested in the Department of Labor (DOL) Medical Certification Form.

y Workers’ Compensation – Medical information that pertains to the employee’s on-the-job injury.

Restricted or Light Dutyy ADA – Required to be offered if it is a reasonable

accommodation that does not create an undue hardship on the employer.

y FMLA – Cannot be required

y Workers’ Compensation – Ought to be offered if available as it may eliminate the employee’s entitlement to the wage replacement benefit.

Fitness-to-Return-to-Work Certificationy ADA –Permitted as long as the medical examination and

inquiry is job-related and necessary to determine whether the employee can perform the essential functions of the job.

y FMLA – Can only be required under a policy or practice that requires employees who have been on a similar type of leave of absence

y Workers’ Compensation – May be and is typically required.

Benefits While on Leavey ADA –No specific requirements but cannot discriminate and must

provide same benefits as those provided to employees on non-ADA leave of absence.

y FMLA – Health coverage must be continued at same level as prior to the leave. Benefits other than health benefits are determined by the employer's established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).

y Workers’ Compensation – Not required to be continued unless run concurrently with FMLA leave.

Reinstatement

y ADA –Required reinstatement to previous job unless doing so would create an undue hardship on the employer.

y FMLA – Required reinstatement to the same or an equivalent job. NO undue hardship exception.

y Workers’ Compensation – No reinstatement rights under most state laws, except for retaliatory discharges.

Sam Stricken and the Bermuda Triangle

y A 15 year employee, history of back and heart problems, not as strong as he used to be, takes medication for his heart.

y New back injury, off for 12 weeks and is now ready to return.

?

• What Does the Employer Want To Do?

• Does the Company Get Trapped in the Bermuda Triangle?

Conclusion

To Avoid Getting Lost in the Bermuda Triangle …

Analyze the Facts Under Each of the Three Laws

Contact Information

Alan Rauss, Partner, 216.736.7221 or [email protected]

Rob Gilmore, Partner, 216.736.7240 or [email protected]

Jon Hyman, Partner, 216.736.7226 or [email protected]

Candice Miller, Associate, 216.736.7272 or [email protected]

mailto:[email protected]




handling employee medical issues under the adaaa (kjk breakfast briefing: april 12, 2011)

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