Expansion of the Federal Americans with Disabilities Act

—Background—

In 1990, the federal Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., was enacted to prohibit employers with 15 or more employees from discriminating against qualifying individuals with regard to “terms, conditions, or privileges of employment.” Under the ADA, employers also have to make “reasonable accommodations” for disabled individuals unless doing so would impose undue hardship.

As a result of several Supreme Court decisions limiting the scope of disability under the Act, the ADA Amendments Act of 2008 (ADAAA) was signed into law by President George W. Bush to expand the definition of disability, making it easier for more individuals to qualify as disabled and be afforded the Act’s protections.  The Equal Employment Opportunity Commission (EEOC) was charged with issuing and adopting regulations, 29 C.F.R. 1630, to implement the ADAAA.  The regulations, which took effect May 24, 2011, reinterpret what is considered a disability under the Act and greatly extend the ADA’s reach.

—Defining a Disability under the ADAAA Regulations—

Under the ADA, a disability is defined as a condition that “substantially limits” an individual’s ability to participate in a “major life activity.”  That definition remains the same under the ADAAA.  However, the ADAAA and its corresponding regulations make significant changes in how the terms “substantial limitation” and “major life activity” are interpreted.  As a result, most chronic conditions will now qualify as disabilities.

What is meant by the term “major life activity” for the purposes of defining a disability? 

Examples of major life activities under the ADAAA regulations include: seeing, hearing, talking, standing, concentrating, thinking, communicating, and interacting with others.  The regulations are clear that this list is “non-exhaustive.”

Additionally, under the regulations an individual may still be considered disabled if a condition has the potential to substantially limit a major bodily function which could include: a specific organ, the immune system, normal cell growth, the bowel, the bladder, neurological functions, the brain, the respiratory or circulatory systems, endocrine and reproductive functions, the skin, urinary systems, cardiovascular systems and functions, and the lymphatic and musculoskeletal systems.  However, the regulations do not take into account whether a condition affects the actual activity of working.  The EEOC rationalizes that conditions which “substantially limit a person’s ability to work usually substantially limit one or more other major life activities.”

Are there criteria for determining whether or not a condition limits a major life activity enough to be considered a disability?

The ADAAA regulations take a liberal view of who is actually disabled through nine broadly-stated rules which establish whether or not a condition substantially limits a major life activity.  It is likely that these rules will be used by the courts in considering ADA discrimination cases.  As a result, employers will be well-served to make sure that their policies and procedures are consistent with these rules.

1. The term “substantially limits” should be broadly interpreted for the purposes of determining a disability.  It does not need to prohibit an individual from performing a major life activity for the individual to still be considered disabled.
2. The following factors must be considered in determining whether an individual is substantially limited from performing a major life activity and could be considered disabled: the conditions under which the individual performs the activity; the manner in which the individual performs the activity; the time it takes to perform the activity; the length of time the individual can perform the activity; the difficulty or effort required to perform the activity; any pain experienced; and, any negative side effects of treatment, such as medication.
3. An extensive analysis is not required to determine whether an individual is substantially limited, and thus disabled.  Instead, focus should be placed on determining whether an employer complied with the ADA and whether discrimination occurred.
4. Individuals should be evaluated by employers on a case-by-case basis to determine whether their conditions substantially limit a major life activity and could be considered a disability. Neither the courts, nor employers, should feel the need to rely on scientific or medical data to reach a conclusion.
5. Generally speaking, no formal scientific or medical research should be required in comparing an individual’s performance of a major life activity to the rest of the population.
6. Individuals must be evaluated based on their condition when they are not medicated or being treated. (An exception is made for glasses and contact lenses.)
7. Even if a condition occurs sporadically or is in remission, it should still be regarded as a disability if it would substantially limit a major life activity if it flared up (e.g., epilepsy, multiple sclerosis, post-traumatic stress disorder, cancer, seizures).
8. A condition may only limit one major life activity and still be considered “substantially limiting” for the purposes of determining a disability.
9. The length of a condition is not relevant in determining whether or not it limits a major life activity and is a disability. A condition lasting six months or less can still be considered substantially limiting.  However, acute conditions with little or no lasting effects such as colds, flus, and sprained or broken bones are not likely to qualify under the rules.  Additionally, pregnancy is not considered a disability in and of itself under the ADAAA unless it causes another condition which substantially limits a major life activity (state laws differ on the matter).

Are there any conditions that automatically qualify as a disability under the new rules?

Although the ADAAA regulations are clear that an employee must be evaluated on an individualized basis, they provide examples of conditions where an assessment is “particularly simple and straightforward.”  These include: deafness, blindness, intellectual disabilities and autism, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, cancer, diabetes, HIV, multiple sclerosis, muscular dystrophy, cerebral palsy, epilepsy, and a variety of mental disorders.

—Employer Responsibilities—

The ADA applies to businesses with 15 or more employees.  Under both the original ADA and the ADAAA regulations, employers are prohibited from discriminating against a disabled individual (or individual with a perceived disability) in all employment practices.  These practices include: recruitment, pay, hiring, firing, promotions, job assignments, training, leave, lay-offs, and benefits.  It is also illegal for an employer to retaliate against an employee for asserting his or her rights under the law, or to discriminate against an employee because he or she has a known relationship or association with an individual with a disability.  In the event an employer is found to have violated the ADA, the courts may impose civil penalties and award money damages and attorney fees to the individual who experienced the discrimination.

How does one determine which employees or job applicants are protected?

To be protected, an employee or applicant must have a record of, or be regarded as, having a condition which “substantially limits” their ability to participate in a “major life activity.”  As a result, employers should familiarize themselves with the nine rules, which were previously mentioned, to assist in determining whether a condition is in fact a disability.  When in doubt, the best course of action is to contact employment law counsel.

What is an employee’s burden of proof in making a discrimination claim? 

In order to make a legitimate discrimination claim, the employee or applicant only needs to prove that they were perceived as being impaired and that an adverse action was taken against them.  However, employers may argue that: they never perceived the individual as being disabled; they took no adverse action against the individual; or, that a condition could be considered and determined to be “transitory and minor.”   Unfortunately, the ADAAA regulations do not define what is considered a “minor” condition other than to state that it is an objective inquiry.  They do, however, explain that a condition is considered minor if it is expected to last less than six months.

When must an employer make a reasonable accommodation for an employee? 

Under the ADA itself, it is ultimately the responsibility of an individual with the disability to request an accommodation.  In most cases an employee will not outright ask for a “reasonable accommodation,” but will instead present a circumstance or problem relating to the disability.  After speaking with the employee, the employer may require an accommodation request to be in writing, although this not required by law.  An employer may also ask for reasonable documentation of the ongoing disability and any functional limitations, but should be careful not to request the employee’s full medical history.

Reasonable accommodations may include:

• acquiring or modifying equipment or devices;
• job restructuring;
• part-time or modified work schedules;
• reassignment to a vacant position;
• adjusting or modifying examinations, training materials, or policies;
• providing readers and interpreters; and,
• making the workplace readily accessible to and usable by people with disabilities.

What if making an accommodation would considerably harm a business? 

Employers are not required to provide an accommodation if doing so would cause an undue hardship.  This is defined as being unduly costly, extensive, substantial or disruptive, or something that fundamentally changes a business’ operation. Among the factors that should be considered in determining whether an accommodation is an undue hardship are its cost, the employer’s size, financial resources, and the nature and structure of its operation.

The ADA requires an employer to exhaust all options before deciding that an accommodation would cause an undue hardship.  For instance, if the cost of the accommodation is causing the hardship, the employer must consider if funding is available through a vocational rehabilitation center or could be offset by state or federal tax credits or deductions.  Additionally, an employer must give an applicant or employee with the disability the option to pay for a portion of the accommodation.

The EEOC advises that employers should always contact the Job Accommodation Network (JAN) prior to determining that there is no viable accommodation that would satisfy the business and the employee.  JAN is a free consultant service that helps employers to make individualized accommodations. The telephone number is 1-800-526-7234.

Suppose an individual cannot perform the functions required for the job?

As originally enacted, the ADA was never intended to interfere with an employer’s right to hire the best applicant.  Therefore, in order to be protected, an individual has the burden of proving that he or she can perform the essential functions of a position, with or without accommodation. Several factors should be considered in making this determination including:

• whether the reason the position exists is to perform that function;
• the number of other employees available to perform the function or among whom the function can be distributed; and,
• the degree of expertise or skill required to perform the function.

If a discrimination claim is filed, the EEOC may also consider:

• the actual work experience of present or past employees in the job;
• the time spent performing a function;
• the consequences of not requiring that an employee perform a function; and,
• the terms of a collective bargaining agreement.

Can an employer inquire about a disability or condition during the hiring process?

No.  An employer may only ask questions regarding an applicant’s ability to perform job functions.  An employer is not permitted to ask an applicant whether he or she is disabled or the nature of a condition.  After a job offer is made and before the applicant begins the position, an employer may require that the applicant take a medical exam if everyone who will be working in the job category must do the same.  Although a job offer can be conditioned on the results of that exam, if the individual is not hired because the exam reveals a disability, the employer must prove that the decision to withdraw the offer is necessary for the business operation or job function.  The employer must also be able to prove that no reasonable accommodation could have rectified the situation.

Once an applicant has been hired, an employer cannot require a medical exam or ask about a disability unless doing so is related to the position.  The results of all medical examinations or information from inquiries about a disability must be kept confidential, and maintained in separate medical files.

—Employer Best Practices—

Employers should review hiring practices, relevant job descriptions, and policies and procedures relating to disabilities in the workplace and reasonable accommodations.  Good faith documented efforts to comply with the ADA and ADAAA will play a vital role in protecting employers against discrimination claims.  To that end, it is important that employers document all interactions regarding accommodation requests including: communications with the individual, research on possible accommodations, offers of accommodation, agreements reached on accommodations, and failures to accept accommodations.

New Jersey employers should also familiarize themselves with the New Jersey Law Against Discrimination (LAD) (N.J.S.A. 10:5-1 et seq.) which may also require accommodations.

It is also important that job descriptions are kept current and include the critical skills and attributes for the job.  The EEOC and the courts may consider the actual functions of an employee versus those identified in a job description.  It is likewise important that company policies and handbooks are evaluated to ensure that they are consistent with the ADAAA regulations as well as applicable state law.

Employers should always consult with labor counsel for questions regarding whether an individual is disabled, whether an accommodation is warranted, if a company policy is consistent with the ADAAA, or whether a hiring process is non-discriminatory.

—Additional Resources—

Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008

http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm

List of Specific Changes to the ADA

http://www.eeoc.gov/laws/statutes/adaaa_notice.cfm

The ADA: Your Responsibilities as an Employer

http://www.eeoc.gov/facts/ada17.html

Job Accommodation Network

http://askjan.org/

Americans with Disabilities Act of 1990

http://www.ada.gov/pubs/ada.htm

Regulations to Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended

http://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as

—For More Information—

If you need additional information, please contact NJBIA’s Member Action Center at 1-800-499-4419, ext. 3 or member411@njbia.org.

This information should not be construed as constituting specific legal advice.  It is intended to provide general information about this subject and general compliance strategies.  For specific legal advice, NJBIA strongly recommends members consult with their attorney.