At long last, the final ADAAA regulations are here

Although the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”) went into effect January 1, 2009, the EEOC just recently released the long-awaited final regulations. The new regulations, which are effective May 24, 2011, reflect the more than 600 public comments the Equal Employment Opportunity Commission (EEOC) received from a wide range of stakeholders.

What stays the same: The basic legal requirement that employers not discriminate against individuals with disabilities who are qualified for a job, with or without reasonable accommodations. The final regulations maintain the ADA’s definition of “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability.

What changes: How these terms are interpreted – with many more conditions falling under the definition of “disability.” For example, impairment doesn’t necessarily have to prevent or restrict performance of a major life activity to be considered substantially limiting. In addition, episodic impairments, such as epilepsy, are considered disabilities if they limit activity.

“Under the new law, the focus is on how the person was treated rather than on what an employer believes about the nature of the person’s impairment,” the EEOC stated at the time the regulations were announced.

As with the existing ADA rules, you should err on the side of caution. It’s best to assume that most employees with physical or mental impairments are covered under the ADA … and make every effort to cooperate with impacted employees. For guidance on the many nuances of the new ADA rules, check out the handy guide available on the ADA website.

At long last, the final ADAAA regulations are here

Changing a job's "essential functions" - ADA loophole or sinkhole?

Ask Woodman’s Food Markets this question and you’ll probably get a resounding “sinkhole.” The Janesville, Wisconsin-based grocery store chain is being sued by the Equal Employment Opportunity Commission (EEOC) for firing a disabled employee who was restricted from lifting more than 10 pounds.

The snag is this: Kimberly McMillan-Goodwin successfully performed the job for years with the lifting restriction. But when she returned from an absence due to injuries in a car accident, she was placed on a one-year leave and then terminated. The company’s explanation? It changed the position, making McMillan-Goodwin no longer able to perform her job with the long-standing restriction. Plus, the company claimed it had no other positions to offer her.

While we don’t know the outcome of the lawsuit yet, the case deserves our attention because it pertains to whether an employer can change the essential functions of a job under the ADA and in turn, fire a disabled individual who was previously qualified. There is a fear that for particularly crafty employers, this could serve as a legal loophole, allowing them to sidestep the accommodation duty under the ADAAA’s expanded definition of “disabled.” Simply change the job description to shut out disabled candidates or existing employees who no longer meet the job’s requirements.

The EEOC’s position in the”changed jobs” case is more clear-cut. “It is unfortunate that some managers still act as if it’s acceptable to deny jobs to people who are ready and able to work, simply because of a disability – especially when the people they put on the street have a history of
long, loyal successful performance,” says John Hendrickson, regional attorney for the EEOC’s Chicago District. “It really runs against most people’s sense of fundamental fairness and, beyond that, it violates federal law.” (eeoc.gov)

October is National Disability Employment Awareness Month. In its support for disabled employees, the DOL’s Office of Disability Employment Policy (ODEP) is promoting the message:

“Talent has no boundaries – Workplace diversity includes people with disabilities.”

Are you doing your part to open doors when hiring and promoting workers with disabilities? Just as important, are your workplace policies in sync with last year’s amendments to the ADA, including making reasonable accommodations for qualified individuals?

Changing a job's "essential functions" - ADA loophole or sinkhole?

Thanks to ADA, NBA may employ oldest player in history

Alan Rupe is a 59-year-old, 5-foot-ten attorney, who claims he can have his dream job as a professional NBA player and you can too, thanks to the Americans with Disabilities Act (ADA).

His strategy – leverage some recent court decisions “guaranteeing” equal employment rights under the ADA in his favor. All he needs to do is find a mental or physical disability protected under the ADA.

His plan – find an ADA protected mental or physical disability. After proving that he suffers from a covered disability, the NBA will essentially be forced to accommodate his limitations.

Sound crazy? Maybe crazy like a fox…

Take a look at the recent appeals decision of Tobin v. Liberty Mutual. Plaintiff Tobin claimed his bipolar disorder caused a lack of focus and concentration. He couldn’t complete work on time, prioritizing was difficult and stress worsened his symptoms.

After 11 months of Liberty working with Tobin to accommodate his disability, he was fired for “consistent poor performance” that the company said lasted for years. Long story short – Tobin sued. Tobin won more than $1 million.

In another case, Titus v. Home Depot, a store manager suffered an injury on the job that caused permanent damage. The manager requested Home Depot make “reasonable accommodations” for him that included a promotion. The company declined, the manager sued and won.

Under the ADA, employers must “provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship.” (EEOC)

“Unless an employer can prove it would suffer “undue hardship” in the operation of the business, the employer is required to provide the requested accommodation,” says Rupe.

As it turns out, the older Rupe gets, the better chance he has at joining the NBA. Like I said, crazy like a fox.

New amendments to the ADA effective January 1, 2009, expanded the definition of disability. And as some experts predicted, reasonable accommodation requests have become more frequent and complicated.

Be prepared to handle and know how to document reasonable accommodation requests with tools like the ComplyRight ADA Administration System. With this supply of ADA forms, information and tip sheets, you’ll be ready to manage employee requests.

With Rupe on the way, maybe the NBA should look into it, too.

Thanks to ADA, NBA may employ oldest player in history

DOL celebrates ADA anniversary with new disability site

Marking the 19th anniversary of the signing of the Americans with Disabilities Act (ADA) the Department of Labor (DOL) yesterday announced the re-name and re-launch of its disability-related informational website, Disability.gov.

The improved site, managed by the DOL, is designed to better inform and serve the more than 50 million Americans with disabilities, along with their families and friends, veterans, employers, educators, caregivers and anyone interested in disability-related information.

"The Department of Labor is pleased to be the managing partner of Disability.gov and to help advance the independence and full participation of people with disabilities in the workforce, the classroom and their communities," said Kathleen Martinez, assistant secretary for the Labor Department's Office of Disability Employment Policy (ODEP).

Disability.gov has pulled together content from 22 federal agencies and utilizes social media tools that enable user interaction. Visitors can sign up for personalized news and updates, participate in online discussions and suggest new resources for the site.

The DOL has also set up a Twitter feed, RSS feeds, a blog, social bookmarking and a user-friendly way to access information on such topics as employment and job accommodation. The Department has plans to add more tools in the coming months.

"Far more than just a directory of federal resources, Disability.gov is a meeting ground for Americans to learn, respond and communicate about a wealth of critically important disability-related topics," said Secretary of Labor Hilda L. Solis. "The new site has been vastly enhanced to provide more information in as efficient and interactive setting as possible."

Read the DOL press release and visit Disability.gov for more information.

DOL celebrates ADA anniversary with new disability site

ADA questions arise after new hire is found having conversations with herself

What do you do when an otherwise perfect new employee starts acting a little “off” after only a few months on the job?

Here’s the situation: A good friend, we’ll call her “Jane,” was hiring for an entry-level sales position about a year ago. She interviewed a candidate who was friendly, articulate, had a steady work history and seemed to be perfect for the job.

After a few weeks of training, employees in her training class and the instructor expressed some concern that the individual was slightly “off.” No one could pinpoint exactly what was wrong, so she remained in training and on course for employment.

About six months later, HR began receiving complaints about the new employee’s strange behavior. Among the various complaints, she had been seen talking to herself in the hallways and break room. Other complaints explained how she was spending an excessive amount of time in the bathroom, having hour-long conversations with herself in the mirror.

Jane contacted Employee Health and the employee was removed from the workplace after going through a complete mental health evaluation.

Though the situation was rather strange and unfortunate, it also brought up some legitimate legal concerns, specifically regarding the Americans with Disabilities Act (ADA):

• What are the ADA consequences if you hired someone and then discovered this behavior on day two? Can you dismiss them?
• Do ADA accommodation requirements come into play? Is there a time frame? Or is it from the moment of hire? What about before the hire?
• If she was otherwise best qualified, can you refuse to hire solely based upon her mental illness?

We ran Jane’s situation and our ADA accommodation questions by the G.Neil legal team to get a better understanding. Generally speaking, here’s what employers should know:

The ADA makes it unlawful to discriminate in employment against a qualified individual with a disability. To be protected from employment discrimination under the ADA, the employee must be disabled (as defined by the ADA) and qualified to perform the essential functions of the job, with or without reasonable accommodation. Disabilities recognized by the ADA may be mental or physical.

Qualified means two things - first the employee must satisfy your requirements for the job, such as education, employment experience, skills or licenses. Second, the applicant or employee must be able to perform the essential functions of the job with or without reasonable accommodation.

If the disabled employee is considered disabled as defined by the ADA and can perform the essential functions of the job with/without a reasonable accommodation, the employee is protected under the ADA and cannot be terminated or not hired solely because of his/her disability.

Reasonable accommodations can include nearly anything, depending on the individual's disability. Examples of common accommodations include:

• Making existing facilities readily accessible to and usable by individuals with disabilities
• Job restructuring or reassignment to a vacant position
• Acquiring or modifying equipment or devices
• Adjusting or modifying examinations, training or policies
• Providing qualified readers or interpreters
• Modified work schedules or leaves of absence

Employers are not required to provide an accommodation that would cause the business an "undue hardship." Undue hardships usually occur when an accommodation would cost too much (based on the company's resources) or would substantially interfere with business operations. This is a legal determination that must be made on a case-by-case basis by the company human resources department and/or legal counsel.

An individual with a disability may request a reasonable accommodation at any time during the application process or during the period of employment. The individual does not have to mention the ADA or use any "trigger" words like "reasonable accommodation" to begin the process. Instead, he or she only has to give you enough information to alert you to the fact that he or she needs an adjustment because of a medical condition.

Requests do not need to be in writing or take any particular form; however, you should have individuals make the request in writing so that the information is documented for future use.

Generally, it is the disabled individual's responsibility to alert you to the need for any accommodation. You are not required to accommodate any disability you do not know about. However, you may initiate the accommodation process if you have noticed a change in the ability of a person with a known disability to perform the job.

The definition of disability was expanded under the new Americans with Disabilities Amendments Act (ADAAA). G.Neil’s updated ADA Facts Sheet is a simple resource to help explain the most recent ADA changes, the process for requesting accommodation, what qualifies as reasonable and more. The ADAAA went into effect on January 1, 2009, read more on how the changes affect your business.

What would you have done in Jane’s situation? Are there any other legal issues that would affect your decision?

ADA questions arise after new hire is found having conversations with herself

The ADA Amendments Act, Part 2: How employers should prepare

In our last post, we examined the major changes the Americans with Disabilities Amendments Act will have on the original law when it becomes effective on January 1, 2009.

The new amendments make major changes to the original ADA, including what is considered a major life activity and the definition of disability. Employers must be aware of the changes and the effect they will have on their businesses. From the Word on Employment Law with John Phillips:

All we know now is that the realm of “the disabled” is about to be significantly enlarged. While it may be incorrect to say the new Act makes everyone disabled, we’ll be much closer to that point than we’ve ever been. Reasonable accommodation requests will become more frequent and more complicated. Disability discrimination charges and litigation will increase dramatically. Given the new Act’s language, it’ll be difficult for courts to dismiss these cases without letting a jury decide them.

In many respects, we’re starting all over with disability discrimination. If the Supreme Court has, in the past, given employers an advantage in these cases, the advantage is about to be given to employees.

If you haven’t started already, employers should be preparing for how the changes to the ADA will effect employment processes, accommodating employees with disabilities and compliance requirements.

In a recent Workforce article, author Tina M. Maiolo explained the next steps employers should take to prepare for the upcoming ADA changes. Here are her seven steps to compliance with the ADA Amendments Act:

1. Assume every employee is healthy. Presume nothing, especially whether the employee has any type of impairment.


2. Assume all employee impairments fall under the ADA. When an employee claims to have an impairment, always assume that it is qualified as a disability under the ADA Amendments Act. Employers are “safer to assume from the outset that an impairment qualifies as a disability than trying to argue later that it does not.”


3. Accommodate employee impairments. After a claim is made, be sure to make all reasonable attempts to accommodate the employee’s impairment. Unless the accommodation creates “undue hardship,” by being so burdensome or expensive that it changes the nature of the business, employers must be accommodating.


4. Review and edit job descriptions. “An employer’s defense against an ADA Amendments Act claim is likely to rest on whether the disabled employee was "qualified" to perform the essential functions of his or her job.” Write an accurate and detailed job description from the beginning that clearly defines essential job functions.


5. Begin ADA Amendments Act training. “HR should treat the ADA Amendments Act as an entirely new law.” Everyone involved in the hiring process, including HR and managers should go through training to understand the changes.


6. Throw away, modify or create disability policies. Either start from scratch writing new disability policies, or modify your existing policies to reflect the latest ADA changes. It would be best to have these done before the law goes into effect on the first of the year.


7. Make modifications as the courts interpret the new amendments. “The impact of the ADA Amendments Act will not be static,” they will continue to evolve over time. Stay on top of the latest changes and your business will be better protected.

Understanding the changes to the ADA is the first step to compliance. Once the law goes into effect on January 1, 2009, it is up to employers to choose to follow what is required of them under the law.

If you’re looking for help managing employee accommodation requests, the ComplyRight ADA Administration System contains all the forms and information employers need to comply. Complete with forms, tip sheets and valuable best practice information, the system can help you manage any request.

The ADA Amendments Act, Part 2: How employers should prepare

ADA Amendments Act, Part 1: What changed?

In September, President Bush signed the Americans with Disabilities Amendments Act as an effort to restore protection for disabled individuals that were created in the original 1990 bill. The new ADA Amendments will go into effect on January 1, 2009 and every employer and HR professional must be prepared to stay in compliance with the new regulations.

The new ADA changes allow more protections for disabled individuals by reversing Supreme Court decisions that once narrowed the definition of disability and what is a major life activity. It also forms broader parameters to how the law may be interpreted by the courts in the future.

One of the biggest questions the amendments answer is in regards to: What is a major life activity? As written, the new ADA states that it shouldn’t be interpreted strictly and whether someone is disabled “should not demand extensive analysis.” According to The Word on Employment Law with John Phillips, Phillips explains:

The Act includes a nonexhaustive list of activities that constitute major life activities, including caring for oneself; bending; performing manual tasks; speaking; seeing; breathing; hearing; learning; eating; reading; sleeping; concentrating; walking; thinking; standing; lifting; communicating; and working. Are you beginning to get the picture? If an employee can’t perform one of these activities, he/she is automatically disabled. Wow!

We’re just beginning, however. The Act also includes a subset of major life activities called “major bodily functions,” including functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. There is no requirement that the functions have any relation to the ability to perform a job. Indeed, some are completely unrelated to work. If these functions are substantially impaired, however, you have a disability.

In another big change, the Act reverses Supreme Court rulings that denied disability status to people with conditions in remission or improved by medicine or medical treatment. The new amendments state that such a condition is still considered a disability if it limits a major life activity when that person is active. According to Phillips:

A disability is to be determined without regard to the ameliorative effects of mitigating measures such as “medication, medical supplies, equipment, or appliances, low-vision devices . . . prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; auxiliary aids or services; or learned behavioral or adaptive neurological modifications.” The only exceptions are eyeglasses and contact lenses.

Additionally, the amendments make the process of claiming a disability less involved. To prove that an employee was disabled under the original ADA, one had to prove they were regarded as having a physical or mental impairment and that the impairment considerably limited a major life activity. “Pandora’s box will be opened,” by the new act, in that an employee may be considered disabled “whether or not the impairment limits or is perceived to limit a major life activity.”

The definition of disability has been significantly altered by the new ADA Amendments Act, employers must be educated on how to fully comply with the latest changes. In our next post, we’ll explain how employers should prepare for the new ADA changes before it becomes effective on the first of the year.

For help managing ADA accommodation requests under the new amendments, take a look at the ComplyRight ADA Administration System. It contains all the necessary forms, tools and information to effectively manage employee requests for reasonable accommodation.

ADA Amendments Act, Part 1: What changed?