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What In-House Counsel
and Human Resource
Professionals Need to Know
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Mary Ellen Simonson
Lewis and Roca, LLP
– Mary Ellen Simonson
Lewis and Roca, LLP, Phoenix, AZ
– Kevin Leblang
Kramer Levin Naftalis & Frankel LLP, New York, NY
– Ian Cooper
Tueth Keeney Cooper Mohan & Jackstadt, P.C., St. Louis, MO
– Jonathan Crotty
Parker Poe Adams & Bernstein, LLP, Charlotte, NC
– Felicia Reid
Curiale Hirschfeld & Kraemer, LLP, San Francisco, CA
– Susan Stahlfeld
Miller Nash LLP, Seattle, WA
– G. Joseph Curley and Joseph Santoro
Gunster Yoakley & Stewart, P.A., West Palm Beach, FL
ADA Amendments Act of
2008 (“ADAAA” or “the Act)
• Signed into law by President George W. Bush, on
September 25, 2008.
– Reinstating a broad scope of protection for individuals with
disabilities by broadening the previously narrowly
interpreted definition of “disability.”
– Rejecting the Supreme Court’s decision in Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999).
– Rejecting the Supreme Court’s decision in Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184
ADA Amendments Act of
2008 (“ADAAA” or “the Act”)
• The ADAAA goes into effect on January 1, 2009.
• Impact of the Act on the EEOC: The EEOC is currently
working to amend its regulations to conform to the ADAAA
making it easier to establish a substantially limiting physical or
mental impairment.
• Impact of the Act on employers: The disposition of
disability claims will become increasingly complex and
Defining “Disability”
• The old definition of “disability” remains intact:
The ADAAA does not alter the ADA’s three-part definition of
• A disability is a physical or mental impairment that
substantially limits one or more major life activities of an
Defining “Disability
• It also includes having a “record of” such an impairment
or being regarded as having such an impairment.
• The new twist on the definition of disability: The ADAAA
expressly states that the definition of disability “shall be
construed in favor of broad coverage of individuals” and “the
question of whether an individual’s impairment is a disability
under the ADA should not demand extensive analysis.”
Interpreting the
“Substantially Limits” Facet
of Defining Disability
• Old rule: The Supreme Court ruling in Toyota
Manufacturing, Kentucky, Inc. v. Williams,534 U.S. 184
(2002) held that the terms “substantially” and “major” in the
definition of disability under the ADA “need to be interpreted
strictly to create a demanding standard for qualifying as
disabled” and that to be substantially limited in performing a
major life activity under the ADA a person must have an
impairment that “prevents or severely restricts the individual
from doing activities that are of central importance to most
people’s daily lives.”
Interpreting the
“Substantially Limits” Facet
of Defining Disability
• New rule: The term “substantially limits” is retained,
however, the Act rejects the Court’s interpretation of
“substantially limits” as “prevents or severely restricts,”
because it creates too demanding a standard for qualifying as
disabled. Further, the Act clarifies that an impairment that
“substantially limits one major life activity need not limit other
major life activities in order to be considered a disability.”
Interpreting the
“Substantially Limits” Facet
of Defining Disability
• Impact of the new rule on the EEOC: The EEOC currently
defines the term “substantially limits” as “significantly
restricts.” The Act calls on the EEOC to broaden its definition
of “substantially limits” to expand those impairments covered
by the Act.
Expanded Definition of Major
Life Activities
• Old rule: Under Toyota Motor Manufacturing, Kentucky, Inc.
v. Williams, 534 U.S. 184 (2002), “major life activities” are
activities that are of “central importance to daily life.” The
Court held that the terms “substantially” and “major” in the
definition of disability were to be “interpreted strictly to create
a demanding standard for qualifying as disabled.” However,
there was no list of specifically enumerated “major life
Expanded Definition of Major
Life Activities
• New rule: The ADAAA, provides two non-exhaustive lists
of activities to always be considered major life activities.
– The first list includes caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.
– The second list enumerates major bodily functions, including
but not limited to functions of the immune system, normal cell
growth, digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and reproductive functions.
Expanded Definition of Major
Life Activities
• Impact of the new rule on the EEOC: The EEOC has been
expansive in its interpretation of “major life activities” and
has included among other activities caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working as major life activities.
However, the ADAAA for the first time expands the
definition of “major life activities” by specifically listing
various bodily functions.
– The relaxation of the “substantially limits” standard in
conjunction with the expanded list of major life activities will
undoubtedly increase the number of employees who can make a
valid disability claim.
Mitigating Measures Can No
Longer Be Considered
• Old rule: In Sutton v. United Airlines, Inc., 527 U.S. 471
(1999), the Supreme Court held that if a person takes measures
“to correct for, or mitigate, a physical or mental impairment,
the effects of those measures – both positive and negative –
must be taken into account when judging whether that person
is ‘substantially limited’ in a major life activity.” The Court
further held that a “disability exists only where an impairment
‘substantially limits’ a major life activity, not where it ‘might,’
‘could,’ or ‘would’ be substantially limiting if mitigating
measures were not taken.”
Mitigating Measures Can No
Longer Be Considered
• New rule: The determination of whether an impairment limits
a major life activity must be made without regard to the
ameliorative effects of mitigating measures, such as:
Medication and medical supplies
Equipment and appliances
Prostheses, hearing aids and mobility devices
Oxygen therapy equipment and supplies
Assistive technology
Reasonable accommodations
Auxiliary aids or services, or
Learned behavior or adaptive neurological modifications.
Mitigating Measures Can No
Longer Be Considered
• Narrow exception to new rule:
– Eyeglasses or contact lenses can be considered in assessing
whether an impairment substantially limits a major life activity.
Individuals “Regarded As”
Having a Disability
• Old rule: The Supreme Court in Sutton v. United Airlines,
Inc., 527 U.S. 471 (1999), held that individuals who claimed
that they were “regarded as” disabled needed to show that their
employer mistakenly thought they had an impairment that
substantially limited a major life activity.
• New rule: An individual meets the requirement of being
“regarded as” having an impairment if “the individual
establishes that he or she has been subjected to an action
prohibited under this Act because of an actual or perceived
physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.”
Individuals “Regarded As”
Having a Disability
• Exception to new rule for transitory or minor
– Individuals with “impairments that are transitory or minor,”
meaning the impairment is expected to last less than six months,
cannot make “regarded as” claims.
• Reasonable accommodations:
– Reasonable accommodations do not need to be provided to
individuals “regarded as” disabled. Therefore, this category of
disability will be less important for employees seeking a
reasonable accommodation as compared to those making an
adverse action claim.
ADAAA Litigation Challenges
for Employers
• The extent of disability litigation nationwide
– 17,734 charges of disability discrimination filed with the EEOC in
2007 (behind race, gender, age and retaliation) –
– Over 2,000 U. S. District Court decisions involving the ADA in
the last 12 months
– Over 300 U.S. Courts of Appeal decisions involving ADA in the
past 12 months
– Assuming $100,000 spent in defense of each litigated case, over
$230,000,000 spent by employers litigating disability claims
brought under ADA each year.
– Other impacts: HR compliance time and effort, investigating and
dealing with charges, verdicts/judgments, etc.
ADAAA Litigation Challenges
for Employers
• Will the amendments change the landscape of litigation
under ADA?
– Assuming that ADAAA’s “broad coverage,” will cases be
decided differently as to whether persons are “disabled?”
– What about the other defenses employers raise to ADA
claims; how will they be impacted?
ADAAA Litigation Challenges
for Employers
• Cases that may have been decided differently postamendments
– Numerous appeals court cases disposing of claims by
holding that the employee is not “disabled” – that the
impairment does not substantially limit a major life
– McNeill v. Wayne County (lupus and thrombocytopenia)
– Nicholson v. W. Penn Allegheny Health Sys. (depression
and PTSD)
– Sarmento v. Henry Schein, Inc. (back injury)
ADAAA Litigation Challenges
for Employers
• Cases that may typify post-amendment battles
– Is the employee “regarded as” disabled?
• Daugherty v. Sajar Plastics, Inc. (perception of being unable to
perform broad range of work versus essential functions of job)
– Can the employee perform the essential functions of the job (is
he or she a “qualified” individual)?
• Melendez-Santana v. P.R. Ports Auth. (total disability finding)
• Kellogg v. Energy Safety Servs. (driving and “safety sensitive”
• Willi v. Am. Airlines, Inc. (attendance)
ADAAA Litigation Challenges
for Employers
• More cases that may typify post-amendment battles –
accommodation disputes
– Is the employee’s request for an accommodation reasonable?
• Filar v. Bd. of Educ. (request for transfer in violation of CBA, or to
conduct costly research about transfers unreasonable)
– Is the accommodation offered by the employer sufficient?
• Santacrose v. CSX Transp., Inc. (using sick and FMLA leave to
avoid overtime)
– Was the interactive process enough?
• Brady v. Wal-Mart Stores, Inc. (interactive process required even if
employee does not request an accommodation)
ADAAA Litigation Challenges
for Employers
• Conclusions regarding post-amendment litigation
– More employees will be considered actually or regarded as
– Employers will seek to defend cases on facts relating to
employee’s ability to perform (“qualification”), rather than on
employee’s classification as disabled or non-disabled.
– More claims for accommodation for persons whose conditions
were not previously viewed as disabling within the meaning of
the ADA.
– Fewer summary judgments, more litigations, and more cost.
New Rules Governing
Construction of the ADA
1. Require that the term “disability” must be interpreted in favor
of broad coverage of individuals.
2. Direct that an impairment that substantially limits one major
life activity need not limit other major life activities to
constitute a legally protectable disability.
3. Provide that individuals who suffer from episodic impairments
or impairments, even if in remission, including cancer are
nevertheless protected under the ADA as long as the
impairment would substantially limit a major life activity
when the impairment is active.
How Does this Impact the
Way an Employer Must Deal
with the ADA?
Absent these new rules of construction, most of the time,
under the old rules, the individual was not “disabled” and,
therefore, examples of what wasn’t covered may now be
covered. Common examples would include cancer, epilepsy,
diabetes, muscular dystrophy, intellectual disabilities, multiple
sclerosis, head trauma, cerebral palsy, heart conditions, mental
illness, HIV immune disorders, liver disease, kidney disease,
dyslexia, learning disabilities, and the list continues.
What Will the Impact Be to
• More requests for accommodation.
• More internal review and, in the case of a close call, the
employee will be regarded as disabled and covered.
• More EEOC charges.
• More potential lawsuits.
• More retaliation complaints, less summary judgments,
dismissal and early conclusions are likely.
• Longer case and more trials.
How to Cope:
Employers’ Responsibilities
• If a request is made for a reasonable accommodation, whether
those words are used or not, the employer will be duty bound
and prudent to give the request careful consideration.
• The process/protocol/policy you were using will likely require
change to address the ADA amendments. The handling of
disabilities issues will now necessarily involve an information
gathering process to enable documentation of the disability,
the reasonable accommodation, or the inability to provide
reasonable accommodation.
How to Cope:
Employers’ Responsibilities
• The presumption will be that a reasonable accommodation is
necessary unless proof of an undue hardship can be
established. The burden will be on the employer. The
employer’s analysis will be crucial and should be documented
and approved.
• The bottom line – previously the burden was on the employee
to establish a legally protected disability, which the courts
made close to impossible and now the burden will be on the
employer to show otherwise. The employer will then likely
face the burden of establishing that a reasonable
accommodation was given or that it would have imposed an
undue hardship.
Employers’ Responsibilities
• Reasonable accommodations will now be given substantial
consideration and should be carefully documented.
• The accommodations will regularly now include such issues
– Reassignments
– Equipment modification
– Alternative help
– Job restructuring
– Leave
– Helpers
Employer Protocols
• Production standards.
• Careful consideration of essential functions and job
• Discussion – give and take – with employees about
accommodations requested and the accommodations that an
employer must legally provide – not necessarily the same.
• Requesting medical documentation.
Addressing the Amendments
• Address job descriptions and related documentation to consider
essential job functions, job production standards and related criteria.
• Review all data and information concerning job qualifications and
essential functions which would include internal posting, job
advertisements, and the like.
• Supervisor training to include:
– Focus on job qualifications;
– Training regarding American With Disability Act requirements;
– Training to document essential job junctions;
– Give and take training for communications concerning accommodations
and consideration of what is reasonable or unreasonable.
Employers Must:
• Understand and learn that the ADA is now a regular part of the
daily employment atmosphere;
• Seek assistance to construct policies and procedures and
ongoing practices to incorporate the ADA, and avoid ADA
claims and lawsuits;
• Construct protocols, policies and procedures, job descriptions,
job advertisements, and related documents to ensure ADA
compliance and also to provide a fair and accurate mechanism
to establish essential job requirements;
• Invest early to understand ADA and develop training, realizing
that such an investment is prudent and efficient over the long
In-House Counsel and HR
• Quickly develop open and mandatory line of communication on ADA.
• Counsel must remain close to process until training and prudent, considered
decision making are in place.
• Learn to recognize and address disabilities, as well as reasonable and
unreasonable accommodation requests.
• Advise regarding interaction with medical treatment providers.
• Advise regarding medical care providers’ opinions of reasonable
accommodations and abilities to perform essential job functions.
• Document job actions concerning potentially disabled employees in a
manner that the job action was not impacted by the alleged disability;
• When job actions involve employees having disabilities or medical issues,
review carefully and document the job action, performance review,
performance criteria, etc. in a manner compliant with the ADA.
Impact of ADAAA
in California Workplaces
Definition of disability under California Fair Employment & Housing Act
(FEHA) is more expansive than pre-amendment ADA, and remains more
expansive after ADAAA amendments.
– Broadly construed
– Condition need only “limit” a major life activity, meaning simply that it makes
achievement of that activity more difficult than for a non-disabled person
– Transient or temporary conditions may qualify as disabilities
– Ameliorative impacts of mitigating or corrective measures are ignored
– Major life activity of “working” includes a particular job, in addition to a broad
range of jobs as under ADA
FEHA requires reasonable accommodation of those simply “regarded as”
disabled, in contrast to ADAAA. Gelfo v. Lockheed Martin Corp., 140
Cal.App.4th 34, 60 (2006).
FEHA incorporates ADA protections to the extent they are broader than the
FMLA Final Regulations
• Final rules take effect on January 16, 2009.
– Despite over six years of consideration, final rules do not make
fundamental changes to chief areas of employer concern:
– Raising the bar for Serious Health Conditions
– Reining in abuses of unscheduled, unforeseeable intermittent
– Rules make important changes to day-to-day FMLA
Significant Changes in
Final Rules
• Serious Health Condition
– For absence plus treatment, second visit must be within 30 days of
onset of incapacity
– For chronic conditions, must see healthcare provider twice per year
• Eligibility
– Employment beyond 7 year gap does not count toward 12-month
– Discretionary leave prior to eligibility does not count toward 12-week
FMLA entitlement
• Holidays – Paid holidays count toward 12-week FMLA entitlement
if leave is one week or more. They do not count for shorter leaves.
Significant Changes in
Final Rules
• Employer Notice – General
– New poster issued
– New general notice of rights – place in handbook
• Employer Notice – Specific request for leave
– Eligibility and Rights and Responsibility Notice – 5 business
days of request
– Designation notice – 5 business days of determination of
qualifying reason for leave
– Fitness to return to work certifications may require list of
essential job functions
– Ragsdale still good law
Significant Changes in
Final Rules
• Employee Notice – Can require use of regular call-in
procedures for intermittent leave
• Medical Certification:
– Two new, expanded DOL medical certification forms
– Seven days to correct incomplete forms
– HR can directly contact provider if information provide is
– Bonuses – Employers may proportionately deduct from most
bonuses for time away from work
• Releases and Waivers – Taylor v. Progress Energy reversed.
No DOL or court approval is required for releases of past
FMLA violations
What Employers Should
Do Now
• Rewrite and publish FMLA policy, procedures, forms and
• Train HR staff regarding new forms and new procedures.
FMLA Leave for
Active-Duty Military
• Two new types of FMLA leave
– Care for family member injured in performance of active
military duties.
– For a “qualifying exigency” related to a family member notified
of or on active military duty.
• Effective date of new regulations: January 16, 2009.
FMLA Leave for
Active-Duty Military
Caregiver leave
– Employee must be spouse, parent, child, or “next of kin” of
covered servicemember with a serious injury or illness related to
active duty.
– “Next of kin” is a blood relative who is in the first of these
categories to exist: a blood relative granted legal custody,
siblings, grandparents, aunts/uncles, and first cousins.
• Usually, all persons in the relevant “next of kin” relationship are
entitled to leave to care for a covered servicemember.
• If a specific person is designated by the covered servicemember as
“next of kin,” that is the only person who qualifies for leave.
FMLA Leave for
Active-Duty Military
Caregiver leave
– Serious injury or illness suffered during active duty.
• Must have been incurred in the line of duty while on active duty.
• Servicemember must be undergoing medical treatment,
recuperation or therapy, including outpatient status.
• Servicemember must be a current member of the Armed Forces or
a member of temporary disability retired list.
• Does not apply to former members of Armed Forces or to members
of permanent disability retired list.
FMLA Leave for
Active-Duty Military
Caregiver leave
– 26 weeks total in 12 months
• 12 months begins on first day of this FMLA leave, regardless of
how the employer usually determines the relevant 12 months
• Does not count against the 12 weeks for other FMLA leave. For
example, the employee could take 10 weeks of service member
care leave, and then take 12 weeks for the birth of a child.
• Total of 26 weeks leave in 12 months, even combined (e.g., if the
employee takes 20 weeks of servicemember care leave, the
employee may take only six weeks of other FMLA leave.
FMLA Leave for
Active-Duty Military
Caregiver leave
– 26 weeks total in 12 months (cont’d.)
• Per covered servicemember, per covered injury or illness (but still
subject to the 26 weeks total in 12 months limitation)
– Leave that could be designated as either care for a covered
servicemember or for a family member with a serious health
condition must be designated as leave for the care of a covered
– Can be intermittent or on a reduced leave schedule
FMLA Leave for
Active-Duty Military
Exigency leave related to call to active duty
– Basic FMLA 12 weeks’ leave in 12 months, using the
employer’s normal method for determining “12 months.”
– May be intermittent or on reduced leave schedule.
– Applies only to relatives of members of the National Guard or
Reserves, and certain retired members of the military. Does not
apply to relatives of active members of the regular armed
– “Call to active duty” refers to a federal call to active duty, not a
call by the state unless done under order of the President.
FMLA Leave for
Active-Duty Military
Exigency leave related to call to active duty
– Qualifying “exigencies”
• Short-notice deployment.
– Deployment of seven or few days.
– To address any issue arising from the notice of deployment.
• Military events and related activities.
– To attend events or informational meetings sponsored by the
military or the American Red Cross related to the deployment.
FMLA Leave for
Active-Duty Military
Exigency leave related to call to active duty
– Qualifying “exigencies” (cont’d.)
Urgent childcare and school activities.
Financial and legal arrangements.
Rest and recuperation.
– Up to 5 calendar days each time the servicemember is on shortterm, temporary, or rest and recuperation leave.
FMLA Leave for
Active-Duty Military
Exigency leave related to call to active duty
– Qualifying “exigencies” (cont’d.)
• Post-deployment activities:
– Events scheduled by the military within 90 days following
termination of active duty status.
– To address issues related to the death of a service member
while on active duty, such as funeral arrangements.
• “Additional activities.”
Impact of New FMLA Rules
and Provisions in California
• California Family Rights Act (CFRA) and regulations have not been
– CFRA nearly identical to original FMLA.
– Exceptions include: 4-mo. pregnancy disability leave an additional
entitlement, limitation on medical information, domestic partners
covered family members.
• New FMLA Military Family Leave Provisions.
– Military caregiver leave will count against 12-week CFRA entitlement
only if condition also qualifies as serious health condition.
– Military exigency leave does not count against 12-week CFRA
– California has 10-day military spouse leave when servicemember is on
home leave from deployment (California Military & Veterans Code
sec. 395.10), which runs concurrently with military exigency leave
taken for that purpose.
Impact of New FMLA Rules
and Provisions in California
Procedural Changes in Nov. 17, 2008, Final Rules
– CFRA regulations expressly incorporate FMLA regs. issued on
Jan. 6, 1995, to extent not inconsistent with CFRA regs.
– Changes made by Final Rules do not apply to CFRA, but
clarifications may.
• FMLA changes more favorable to employees than CFRA:
California employers must comply (i.e., employee may become
eligible for FMLA leave while on discretionary leave).
• FMLA changes more favorable to employers than CFRA:
California employer would need to comply with more stringent
CFRA regulations & incorporated old FMLA regulations.
– Because interactions are complex ,California-specific legal
counsel/training is recommended.
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