FACTS:

• Signed into law September, 2008 and went into effect January 1, 2009.  (The ADA itself applies to all employers with 15 or more employees unless state law dictates otherwise).
• The ADAAA does include changes regarding company policy and procedures for individuals with physical or mental impairments.
•   Employers might be faced with:  Increased requests for accommodations for employees, increased litigation by individuals claiming to be disabled, or have impact on leave policies, especially FMLA.
• While it will always be a fact-specific issue, as a general rule:  Congress says that any condition lasting 180 days or more will likely fall under the protection of the ADAAA and requires the accommodation discussion.  There may be exceptions on either side of the 180-day line, but this is the general rule concerning the point at which a “condition” becomes a “disability.”

What did it change?  Definition of disability remains the same – “A physical or mental impairment that substantially limits a major life activity”.  Temporary conditions do not apply, such as a broken leg with full recovery expected.  Recurrent permanent disability does, such as diabetes.  Broadens the umbrella of coverage under which individuals can be deemed disabled by ADA.  Overturned several prior Supreme Court Decisions:

• Sutton v. United Airlines (1999) [Dealing with eye wear]
• Murphy v. United Parcel Service, Inc. (1999) [dealing with diabetes/insulin]
• Toyota Motor Manufacturing v. Williams (2002) [dealing with carpal tunnel syndrome and the need to be restricted in multiple life aspects]

(Note, while language from Sutton regarding mitigating measures was overturned, the specific condition in question (myopia) that can be corrected with glasses is NOT considered a disability to the extent the glasses correct the problem).

Called for revision of EEOC regulation regarding the phrase, “substantially limits”.  Now defined by the ADA as requiring only:

• “Significant restriction” of a major life activity.
• Permanent or long term condition may apply.
• More closely approximates the definition used for Workers Compensation, even a slight level of impairment.
• Employers should be prepared for possible claims of disability discrimination and must be proactive in communicating with employees.
• Avoid use of the terminology “disabled” and use terms, “medical condition” or “health condition” in speaking of needs.  Instruct supervisors in which terms to utilize.
• If someone comes in stating they have a problem, do not challenge it or ask for details.  Focus on whether they can perform the job they are either currently holding or for which they are being considered.
• Legally, in court, employers who at least have had the necessary conversation or tried to accommodate will be viewed more favorably even if their efforts aren’t successful.  Make an effort to discuss reasonable potential accommodations.
• Have one designated person, who has been trained to field same, handling requests for leave and accommodation.  Require that person to document/obtain documentation on all collaborative discussions with persons consulted with for potential accommodations (i.e. facility engineer, health and safety manager, facility nurse, physical/occupational therapist treating employee, treating physician, etc.).
• Document all phone calls, meetings and communications with individuals regarding disability, requests for accommodations, medical restrictions and job duties.
• Have a witness (who will maintain confidentiality) taking notes in “Interactive Process” meetings.  Use terms “temporary”, “modify” and “adapt” in these conversations.
• It is more important than ever to have on hand current functional job descriptions.  If these are not pre-existing, it will be too late if litigated to obtain same.
• Examples of Accommodation:  job restructuring, part time or modified work schedule, unpaid leave, assignment to a vacant position, or unpaid leave.

Employers have the right to choose the accommodation, but:

• Accommodation must be effective, i.e., address the employee’s disability.
• It does not have to be what the employee requests.
• Employers do not have to change the essential functions of the employee’s job.
• Employers do not have to create a new job.
• Examples:
• Mandatory overtime as an essential function of the job: This is still permitted, provided you can show why working in excess of 40 hours in a week is necessary (i.e. show business reason).  If it can be accommodated, however (i.e. work six 8-hour days instead of five 10-hour days (or whatever to make the number of hours equal), then the employer has the obligation to do so absent an undue hardship.
• Concerning shift schedules and bumping in a unionized environment: there is nothing in the revised law that changes the standing principle that an employer is not required to create a job where one does not already exist as an accommodation.  Nor is an employer required to violate the terms of a CBA in order to accommodate a disabled employee. These are considered either unreasonable or unduly burdensome.
• As for whether accommodations that change production flow are required, it depends on whether such a change will create an undue hardship on the business.  For example, if your company has to create 6,000 widgets to keep up with customer demand and it has traditionally made 4,000 Monday- Wednesday and 2,000 Thursday and Friday, it may or may not be an undue hardship for the company to now produce 3,000 Monday-Wednesday and 3,000 Thursday and Friday (say, for example, if the disabled employee needs time off Monday to go to a doctor for chemo treatments).  It will depend on a number of factors, including whether there is a business necessity to front-load production.  Ultimately, it will be a fact-specific inquiry.
• Employers Should:
• Identify the employee’s functional limitations.
• Identify the essential functions of their job.  (Having formal functional job descriptions in advance is ideal.)  Job functions should be reassessed and updated annually with copies of the prior ones dated and maintained indefinitely, going forward.
• Identify any potential reasonable accommodation.
• Closely monitor Restricted Duty programs including:  a)      Periods of workplace absences (either work related or non-work related) for opportunity to temporarily accommodate.  Do formal RTW consultation at the 60 day absence period. b)      Conduct formal monitoring of Restricted Duty assignments at least monthly with formal RTW consultation at 150 days of Restricted Duty.

Expect to See Increased Accommodations/Litigation regarding:

• Mental impairments such as depression, anxiety, bipolar disorder require accommodations such as a less stressful shift scheduling or unpaid leave of absence.  (Example:  At least one court has already ruled that terminating an employee with violent outbursts in the workplace, due to bipolar disorder, was tantamount to termination due to the disability).
• Illnesses requiring medication control such as diabetes, epilepsy, and Crohn’s disease.
• Allergies or sensitivities to certain irritants such as perfumes can require accommodation by banning same from the workplace.
• Sources:  EEOC web site – www.eoc.gov/policy, www.jan.wvu.edu/bulletins,

Matthew S. Effland of Ogletree Deakins Law Firm:  Matthew.Effland@ogletreedeakins.com

For assistance with formulating Functional Job Analyses and Functional Job Descriptions, please contact Doug Young,  VP of Sales and Marketing for  MedInsights at:  615-686-7536 or, e-mail:  youngrd@MedInsights.com,

This is intended for general informational purposes only and is not meant to replace legal counsel.  We urge you to consult an attorney for any issue regarding applicability or interpretation of any provision contained herein.  This is not intended to be a complete summary of the law.