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ADA/AADAA/EEOC = OMG!

By: DOLAN MEDIA NEWSWIRES//January 8, 2013//

ADA/AADAA/EEOC = OMG!

By: DOLAN MEDIA NEWSWIRES//January 8, 2013//

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By Francyne Stacey
Dolan Media Newswires

The Americans with Disabilities Act is back, rejuvenated and stronger than ever.

This is due, most likely, to the ADA Amendments Act which put disability issues front of mind.

The ADAAA, which covers employers with 15 or more employees, expands the definition of disability and provides additional workplace protection for disabled employees and those regarded as disabled.

In enacting the ADAAA, Congress directed the EEOC to amend its ADA regulations to comply with the changes. These regulations became final March 25, 2011, and with those came a renewed emphasis on disability claims by the EEOC.

In particular, the EEOC is taking a more serious look at issues such as job descriptions, job-protected leave and reasonable accommodations.

Disability discrimination can take many forms:

  • Limiting, segregating, or classifying candidates on the basis of disability;
  • Discriminatory testing, standards, or selection criteria;
  • Conducting medical examinations that are not job related;
  • Offering different and fewer benefits to disabled individuals; and
  • Failing to provide a reasonable accommodation.

An applicant or employee is disabled for ADAAA purposes if she or he has a physical or mental impairment that substantially limits a major life activity, including mostly everything involved in day-to-day living: caring for oneself; performing manual tasks; seeing; hearing; sleeping; walking; standing; breathing; learning; reading; concentrating; thinking; communicating; interacting with others; and working.

As should be obvious, the determination of whether a person has a covered disability does not require extensive analysis. A person also may have a covered disability, such as asthma or epilepsy, even if the disability is usually under control. Further, a substantial limitation on just one major life activity is enough for coverage under the Act.

Finally, while not as common, it is important to remember that individuals are entitled to the Act’s protection if they have a record of an impairment that substantially limits a major life activity or are regarded as having such an impairment. The final regulations provide extremely detailed explanations of all of the above, and more. (See 29 CFR 1630.1 – 1630.16.)

While the ADAAA did make it easier for an individual to receive the benefit of the ADA’s protections, prior exclusions from the definition of disability remain the same: transvestites, transsexuals, pedophiles, exhibitionists, and voyeurs are not considered disabled under the Act (although they may experience discrimination for other reasons).

Illegal drug usage, including the use of medically prescribed marijuana, is not protected under the ADA, although a person who successfully completes a drug rehab program and is no longer using may be protected. Finally, as with all anti-discrimination statutes, it is unlawful to retaliate against an individual because that person made a charge, testified or opposed any practice made unlawful by the ADA.

On the issue of disability discrimination not involving an accommodation, the 6th U.S. Circuit Court of Appeals in Lewis v. Humboldt Acquisition Corp., 681 F3d 312 (6th Cir. 2012), adopted a “but-for” standard of proof.

This means that a plaintiff has to prove that the adverse job action would not have occurred “but-for” the plaintiff’s disability. This standard is different than proving that a disability was the “sole reason” or a “motivating factor” behind the adverse employment action. Suffice it to say, however, that whatever the standard of proof, if the case goes to trial, the semantics probably don’t matter.

Under the ADAAA, a qualified applicant or employee with a disability may request an accommodation. Under Michigan law, an accommodation request must be made in writing within 182 days after the date the person knew or reasonably should have known that an accommodation was needed. These formalities are not required under the ADAAA.

Once an employer receives a request for accommodation, the employer must engage in an interactive process with the individual in order to determine whether a reasonable accommodation can be made.

And, the accommodation should be made unless it constitutes an undue hardship or employment or continued employment of the individual poses a direct threat to the health and safety of that person or others in the work force.

The choice of what of accommodation to make is the employer’s, so long as it enables the employee to perform the essential functions of the job and provides the employee with the same perquisites of employment as other employees.

Simply put, an accommodation is any change in the work environment or in the way things are customarily done that enables a qualified individual with a disability to enjoy equal employment opportunities.

What are some pro-active steps that employers can take to limit liability for disability discrimination/failure to accommodate claims?

First, ensure that existing job descriptions accurately reflect the actual job and are updated periodically. The question that should be answered is what is required to actually get the job done.

A function is generally considered “essential” if the reason the position exists is to perform that function, the position is highly specialized, or others could not easily take over the function. While it is always up to the employer to decide what the essential functions of the job are the more objective and measurable the better. Employers without job descriptions may want to consider drafting some.

Employers also should review their policies to ensure compliance with the ADAAA and, perhaps, consider an instruction manual for anyone that has to respond to an accommodation request.

Overall, employers need to pay attention and, as always, use common sense.

Francyne Stacey is a shareholder at Butzel Long in Ann Arbor, Mich. Her practice areas include immigration and employment litigation. She can be reached at [email protected].

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