Attorney: New ADAAA Regulations Focus More on Employers' Actions
The EEOC's final regulations to implement the ADA Amendments Act take effect May 24. The regulations have wide-reaching implications, experts say.
"Employers should expect that ADA cases will proceed to a point where they must defend decisions by showing individuals were not 'qualified' because they could not safely or successfully perform essential job functions, with or without reasonable accommodations, or that the employers offered or attempted unsuccessfully to offer reasonable accommodations. Every adverse employment decision that is based on an individual's inability to perform due to an injury or illness has the potential to lead to a contested ADA case," according to the law firm Jackson Lewis.
"People on workers' comp leave will be a breeding ground for ADA cases," said Frank Alvarez, a partner at Jackson Lewis. "I think you have to walk away with an expectation that most injured workers who are unable to work for any type of significant period of time will be protected by the ADA."
The new regulations have changed the focus.
"In the past most ADA cases were coverage cases," Alvarez said. "Now most ADA cases are going to be defense cases, which will mean much more costly litigation, will lead to many more claims, and the win rate should increase dramatically for employees."
Expanded definition. Among the changes under the new regulations is the definition of a disability. "Actual" and "record of" disabilities apply to physical or mental impairments that substantially limit one or more major life activities.
A "regarded as" disability pertains to actions taken by a covered entity that are prohibited by the ADA "because of an actual or perceived impairment that is not both transitory and minor." Although individuals "regarded as" disabled are not entitled to reasonable accommodation, Alvarez cautions against ignoring those who fit this definition.
"Employers would be foolish to expect that plaintiffs who bring ADA suits would rely solely on the 'regarded as' theory," he said. "And the regulations clarify that impairments that have an actual or expected duration of less than six months still may be substantially limiting and sufficiently serious to be an actual disability under the ADA, which would trigger reasonable accommodation obligations."
Another area of concern are programs that attempt to evaluate the physical abilities of applicants with the aim of reducing injuries if they are hired, Alvarez said. For example, post-job offer screenings for carpal tunnel syndrome did not previously constitute disability under the ADA.
"The final regulations make changes to the concept of 'regarded as' theory that make every one of those individuals now a viable ADA plaintiff," Alvarez said. "This is also happening at a time when the EEOC has a much greater focus and commitment to bringing class actions challenging practices that they believe create systemic discrimination, which furthers the risk for employers."
Alvarez suggests employers reevaluate programs that assess the physical abilities of job applicants to ensure they have included protocols that allow for individualized assessments concerning potential reasonable accommodation and/or direct threat assessments.
Advice to employers. Employers should be prepared to show that they engaged in dialogue about reasonable accommodation, Alvarez suggests. He cautions that while transitional work might be a part of that conversation, it cannot be the only element of the discussion.
Among the prohibited actions is "placement on involuntary leave." It falls under the "regarded as" category.
"What I believe the EEOC is getting at there is what I'd refer to as underemploying somebody -- that there is not a sufficiently rich examination of alternative ways of performing essential job functions to keep someone fully employed," Alvarez said. "If employers take injured workers and automatically place them on leave for fear of continuing injuries, or that they won't be sufficiently productive, they will be exposed to ADA claims unless they can simultaneously say that they explored potential reasonable accommodation that would overcome job limitations posed by the injuries."
Alvarez said risk managers need to be thinking ADA and reasonable accommodation, as much as they're thinking about limiting the risk of future injuries or automatically relying on a structured transitional work program.
"The number one thing [employers should do] is make certain you have good job analyses and descriptions identifying the essential functions of positions because that knowledge forms the cornerstone of any interactive dialogue and employers who don't have good functional job descriptions are going to be ill-equipped to meet their burdens of exploring reasonable accommodation," Alvarez said.
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April 18, 2011
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