Last month we discussed your obligations to employees under FMLA. We now turn our attention to ADAAA and the protection it extends to employees and obligations it imposes on you.
One of the protections of the original 1990 Americans with Disabilities Act (ADA) was preventing the discrimination of individuals in the workplace because of a disability defined as “a physical or mental impairment that substantially limits one or more major life activities.”
On 1/1/09, this act was strengthened by expanding the definition of disability under the Americans with Disabilities Act Amendments Act (ADAAA). The final regulations of ADAAA were imposed on 5/24/11 requiring employers to comply with a stricter discrimination law applied to a larger class of disabled individuals.
The broadening of the disability definition shifted the focus from whether an employee has a disability to if the employer has provided reasonable accommodations so that the employee can perform the essential functions of the job and retain his or her position.
Disability–a physical or mental impairment that substantially limits one or more major life activities of such individual, a record of such impairment, or being regarded as having such impairment (excluding transitory and minor impairments).
Major Life Activities–caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Also included is operation of major bodily functions including functions of the immune system, normal cell growth, digestive, vowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Regarded as having an impairment–the individual establishes that he/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.
Transitory Impairment – actual or expected duration of 6 months or less.
While an individualized assessment is always required to determine whether an impairment qualifies an employee for protection under the ADAAA, the EEOC has stipulated that some impairments will, in “virtually all cases,” result in a finding that they are covered by the ADAAA. Impairments that should lead to “predictable assessments” include:
- intellectual disabilities
- partially or completely missing limbs or mobility impairments requiring the use of a wheelchair
- cerebral palsy
- HIV infection
- multiple sclerosis
- muscular dystrophy
- major depressive disorder
- bipolar disorder
- post-traumatic stress disorder
- obsessive compulsive disorder
Is your business subject to ADAAA?
You are subject to ADAAA if you meet one of the following criteria:
- are a private employer engaged in an industry affecting commerce and had 15 or more employees for each working day in each of 20 calendar weeks in the current or preceding calendar year
- are a federal contractor or subcontractor subject to Section 503 of the Rehabilitation Act
- receive federal financial assistance under Section 504 of the Rehabilitation Act, regardless of the number of employees you have
Note that state and local laws may apply to smaller businesses not meeting the above criteria.
Keep in mind that even if you are not subject to ADAAA for employees, if you are considered a place of public accommodation, you would be required to comply with the definition of disability with respect to the goods and services you provide to the public.
What are “reasonable accommodations”?
Under ADAAA, you are required to make reasonable accommodations so your employee may perform the essential functions of his/her position unless doing so would impose undue hardship on your business operations.
To determine if a function is essential, identify:
- 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 performance of the function can be distributed
- The degree of expertise or skill required to perform the function
When an employee with a disability requests an accommodation, the appropriate accommodation may be obvious or the employee may suggest an accommodation based on previous life or work experience. If the reasonable accommodation is not readily apparent you must make an effort to identify one that would enable the employee to perform the essential functions of the job. Examples of accommodations include:
- Making the workplace readily accessible and usable
- Job restructuring
- Part-time or modified work schedules
- Reassignment to a vacant position
- Adjusting or modifying training material or policies
- Providing readers or interpreters
- Acquiring or modifying equipment or devices
To identify whether an accommodation would cause undue hardship, consideration should be given to the following:
- Nature and cost of the accommodation
- Overall financial resources of the involved facility
- The number of employees at facility
- Effect on expenses and resources
- General impact on operations
- Overall financial resources of your business including the overall business size with respect to the number of its employees; type, number, and location of facilities
- Type of operations including the composition, structure, and functions of the workforce
If the accommodation would be an undue hardship, you must try to identify another one that would not pose such a hardship. If cost is the hardship you can look to see if there is funding available from an outside source or could be offset by state or federal tax credits/deductions.
Reasonable accommodation must also be made to enable applicants with a disability to participate in the application process. It is crucial that the “accommodation process” happens and is documented.
It is key that your managers and supervisors are trained on the current ADAAA standards. They should clearly understand the definition of disability and the need for reasonable accommodations. They should refrain from mentioning medical conditions when speaking with employees and be able to recognize accommodation requests even when not directly asked for an accommodation. Training managers can prevent a claim and reduce retaliation claims as a simple negative or derogatory remark by a manager or supervisor in response to an accommodation request can be considered retaliation.
Complying with ADAAA is a legal requirement but equally important is documenting your compliance. If your compliance is challenged, your documentation and proof of communication with your employees throughout the process will be essential.
If a claim should be brought against you, the following will be taken under consideration by EEOC:
- Your judgment as to which functions are essential
- Written job descriptions
- Actual work experience of present or past employees on the job
- Time spent performing a function
- Consequences of not requiring that an employee perform a function
- Terms of a collective bargaining agreement.
Can ADAAA impact other employee benefits?
The ADAAA prohibits employers from indirectly discriminating on the basis of disability in the provision of benefits. It is unlawful for an employer to limit or segregate an applicant or employee in a way that adversely affects his or her employment opportunities or status on the basis of a disability.
One reasonable accommodation that may be made is changing an employee’s full-time job to a part-time position. In this case, benefits to the employee are based on what is offered to other part-time employees.
Combining the new ADAAA with the Family Medical Leave Act (FMLA), each employee with a disability will now likely also qualify for FMLA leave.
ADAAA Common Mistakes
- The most common mistake is the failure for the employer to engage in interactive dialogue or stopping discussions because they can not think of a reasonable accommodation that would allow the employee to continue at his/her job. Dialogue is important to determine if an employee’s function is essential. Job descriptions that incorporate physical requirements can assist in this conversation and help identify potential accommodations as well.
- Lack of documentation about communications pertaining to disability
- Supervisors do not reach out to to their HR department for guidance as soon as they become aware of a potential ADAAA qualifying condition.
- Defining “undue hardship” too broadly and dismissing an employee’s requested accommodation because it seems unreasonable on its face. Reasonable accommodation is usually far less expensive than many people think. In most cases, an appropriate reasonable accommodation can be made without difficulty and at little or no cost. Federal tax incentives are available to businesses to help them meet the cost of ADAAA compliance.
Remember when considering if an employee qualifies for ADAA is not the time to rate their job performance!
Fines and Penalties for Failure to Comply
The Department of Justice may not sue a party unless negotiations to settle the dispute have failed. Typically the Department only seeks such penalties when the violation is substantial and the business has shown bad faith in failing to comply.
If the negotiations fail, the Department of Justice may file lawsuits in federal court to enforce the ADAAA and courts may order compensatory damages and back pay to remedy discrimination if the Department prevails. Under title III, the Department of Justice may also obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation. The Department will consider a business’ size and resources in determining whether civil penalties are appropriate. Civil penalties may not be assessed in cases against state or local governments or employers.
How we can help…
Our agency can assist you in finding resources to answer ADAAA questions or concerns that may arise. One resource that you may find beneficial is the “Job Accommodation Network” (JAN).
In addition, we can review your insurance program to see if you have any protection of those insurable related incidents. Please contact us today to review your exposures and potential risk transfer. firstname.lastname@example.org