what’s an employer to do? intersection of ada and fmla kara m. miller esq. franklin &...
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What’s an Employer What’s an Employer to Do? Intersection of to Do? Intersection of
ADA and FMLAADA and FMLAKara M. Miller Esq. Kara M. Miller Esq.
Franklin & Prokopik, P.C.Franklin & Prokopik, P.C.
Why do we even care?Why do we even care?
The Americans With The Americans With Disabilities Act:Disabilities Act:
ADA Charges Filed Over the ADA Charges Filed Over the Last 6 YearsLast 6 Years
10,000
12,000
14,000
16,000
18,000
20,000
22,000
24,000
26,000
FY2006
FY2008
FY2010
Cause for ConcernCause for Concern
• ADA Amendments Act 0f 2008 became effective ADA Amendments Act 0f 2008 became effective on January 1, 2009on January 1, 2009• Reshapes the way ADA claims are to be analyzed Reshapes the way ADA claims are to be analyzed
and how discrimination suits will be litigatedand how discrimination suits will be litigated• Results? Results? • Expect even Expect even MOREMORE ADA claims and charges ADA claims and charges
Notice IssuesNotice Issues
• Putting the Employer on Notice of Potential Duty Putting the Employer on Notice of Potential Duty to Accommodateto Accommodate• No “magic words”No “magic words”• Written request not requiredWritten request not required• Need not even comply with Company policyNeed not even comply with Company policy
• Request need not be made by EmployeeRequest need not be made by Employee• Employee Need Only Convey Bare Minimum of Employee Need Only Convey Bare Minimum of
InformationInformation• Duty to make reasonable inquiriesDuty to make reasonable inquiries
What’s Covered?What’s Covered?
Scope of Coverage Under the ADAScope of Coverage Under the ADA
• EmployerEmployer• 15+ employees15+ employees
• EmployeeEmployee• Applicants Applicants • Employees regardless of length of employmentEmployees regardless of length of employment• Qualified individuals with a “disability” who are able to Qualified individuals with a “disability” who are able to
perform “essential job functions” with or without perform “essential job functions” with or without “reasonable accommodation”“reasonable accommodation”
Congress Changes Its IntentCongress Changes Its Intent
• ADAADA• Original language barred discrimination against a Original language barred discrimination against a
qualified individual with a disability because of the qualified individual with a disability because of the disabilitydisability
• ADAAAADAAA• ““Primary object of attention” should be whether Primary object of attention” should be whether
employers “complied with their obligations”employers “complied with their obligations”• Change in FocusChange in Focus• Courts will likely focus more on an employer’s alleged Courts will likely focus more on an employer’s alleged
discriminatory conduct than the disability of the discriminatory conduct than the disability of the employeeemployee
Physical/Mental ImpairmentPhysical/Mental Impairment
• PhysicalPhysical• Any cosmetic disfigurement or anatomical loss affecting Any cosmetic disfigurement or anatomical loss affecting
1 or more of the following systems: neurological, 1 or more of the following systems: neurological, musculoskeletal, sense organs, respiratory, musculoskeletal, sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrinehemic and lymphatic, skin and endocrine
• MentalMental• Any mental or psychological disorder such as mental Any mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilitiesmental illness, and specific learning disabilities
Episodic ImpairmentsEpisodic Impairments
• Under ADAAA impairments now include episodic Under ADAAA impairments now include episodic impairments and those in remission, if, when impairments and those in remission, if, when active, substantially limit a major life activity such active, substantially limit a major life activity such as:as:• DiabetesDiabetes• EpilepsyEpilepsy• DepressionDepression• Bipolar disorder; and,Bipolar disorder; and,• CancerCancer
““Substantial Limitation of Substantial Limitation of Major Life Activities”Major Life Activities”
• Occurs when an individual is Occurs when an individual is • ““unable to perform a major life activity that the average unable to perform a major life activity that the average
person in the general population can perform” or person in the general population can perform” or • “ “ is significantly restricted as to the condition, manner, is significantly restricted as to the condition, manner,
or duration under which an individual can perform a or duration under which an individual can perform a particular major life activity” particular major life activity”
• as compared to an average person in the general as compared to an average person in the general population.population.
Examples of “Major Life Examples of “Major Life Activities”Activities”• ADA ExamplesADA Examples• SeeingSeeing• SpeakingSpeaking• HearingHearing• WalkingWalking• LearningLearning• Performing manual tasksPerforming manual tasks• WorkingWorking• Caring for one’s selfCaring for one’s self
• ADAAA ExamplesADAAA Examples• ConcentratingConcentrating• ThinkingThinking
““Substantial Limitation”Substantial Limitation”
• Factors to Consider:Factors to Consider:• Nature and severity of impairment;Nature and severity of impairment;• Duration or expected duration of impairment; and,Duration or expected duration of impairment; and,• Permanent or long-term impact, or expected Permanent or long-term impact, or expected
permanent or long-term impactpermanent or long-term impact
Mitigating MeasuresMitigating Measures
• ADAADA• Previously, Supreme Court in Previously, Supreme Court in Sutton v. United AirlinesSutton v. United Airlines
held that ADA didn’t protect employees for whom held that ADA didn’t protect employees for whom mitigating measures could correct impairmentmitigating measures could correct impairment
• ADAAAADAAA• Now, courts must assess employee’s disability without Now, courts must assess employee’s disability without
regard to mitigating measures except for “ordinary regard to mitigating measures except for “ordinary eyeglasses or contact lenses” eyeglasses or contact lenses”
That’s it, That’s it, right?right?
ADA and the FMLAADA and the FMLA
• More “serious health conditions” will now be ADA More “serious health conditions” will now be ADA disabilitiesdisabilities• Medical InquiriesMedical Inquiries• Leave EntitlementsLeave Entitlements• Including intermittent leaveIncluding intermittent leave
• Reinstatement RightsReinstatement Rights
ADA and Workers CompensationADA and Workers Compensation
• More WC disabilities will become ADA disabilitiesMore WC disabilities will become ADA disabilities• More requests for accommodationsMore requests for accommodations• Vocational rehabilitation needs might go Vocational rehabilitation needs might go downdown?!??!?• Claims personnel/defense attorneys must need to Claims personnel/defense attorneys must need to
know more about both lawsknow more about both laws• Increase in litigationIncrease in litigation• Settlements may be impactedSettlements may be impacted
What are you to What are you to do?do?
The “Interactive Process”The “Interactive Process”
• Required by the ADARequired by the ADA• Duty to engage in a flexible, interactive discussion with Duty to engage in a flexible, interactive discussion with
the disabled employee so that together the Employer the disabled employee so that together the Employer and Individual can identify the precise limitations and and Individual can identify the precise limitations and discuss potential accommodationsdiscuss potential accommodations
Facets of the Interactive ProcessFacets of the Interactive Process
• Good Faith Duty to CooperateGood Faith Duty to Cooperate• Duty of Reasonable InquiryDuty of Reasonable Inquiry• Individualized AssessmentIndividualized Assessment• Duty to Consider AlternativesDuty to Consider Alternatives• Informal and FlexibleInformal and Flexible• TimelyTimely
““Reasonable Accommodation”Reasonable Accommodation”• Duty to Provide Unless “Undue Hardship”Duty to Provide Unless “Undue Hardship”• Factors include: nature & cost of accommodation, size Factors include: nature & cost of accommodation, size
and resources of employer, and the type of operation and resources of employer, and the type of operation involvedinvolved
• Extends to All Employment DecisionsExtends to All Employment Decisions• Hiring/firing, promotions, transfers, etc.Hiring/firing, promotions, transfers, etc.
• Extends to All Services and ProgramsExtends to All Services and Programs• CafeteriasCafeterias• LoungesLounges• GymsGyms
• Direct Threat DefenseDirect Threat Defense
Reasonable Reasonable Accommodations?Accommodations?
• YesYes• Providing unpaid leaveProviding unpaid leave• Acquiring/modifying Acquiring/modifying
equipmentequipment• Job restructuringJob restructuring• Providing “light duty”Providing “light duty”• Reassigning to a vacant Reassigning to a vacant
positionposition• Modifying work Modifying work
schedules/hoursschedules/hours
• NoNo• Providing personal use Providing personal use
items to accomplish items to accomplish activities on and off job, activities on and off job, e.g. e.g. prosthetics, glasses, prosthetics, glasses, hearing aidshearing aids
• Monitoring Monitoring medication/treatmentmedication/treatment
• Violating collective Violating collective bargaining agreement bargaining agreement for reassignmentfor reassignment
Avoiding Common Avoiding Common PitfallsPitfalls
Most Frequent Employer ErrorsMost Frequent Employer Errors
• ““Tunnel Vision” Tunnel Vision” • Failure to Train Supervisors/Managers to Follow Failure to Train Supervisors/Managers to Follow
ProtocolsProtocols• Accountability issuesAccountability issues
• Making Unilateral DecisionsMaking Unilateral Decisions• Acting Too Quickly/Too Slowly Acting Too Quickly/Too Slowly • Failure to Conduct Reasonable Inquiries Failure to Conduct Reasonable Inquiries • Poor DocumentationPoor Documentation
Frequent Errors (cont.)Frequent Errors (cont.)
• The Blame GameThe Blame Game• ““That’s not my department”That’s not my department”
• Inflexibility Inflexibility • Failure to Thoroughly Analyze “Undue Hardship” Failure to Thoroughly Analyze “Undue Hardship”
CriteriaCriteria• Retaliatory ConductRetaliatory Conduct• Failing to Consider Practical IssuesFailing to Consider Practical Issues
Defending Your Defending Your DecisionDecision
Defense ConsiderationsDefense Considerations
• Legitimate Business NecessityLegitimate Business Necessity• Documenting your rationale Documenting your rationale
• Passing the “Smell Test”Passing the “Smell Test”• Good faithGood faith
• Impact of ADA v. WC ClaimsImpact of ADA v. WC Claims• Use of transcripts/medical records in defenseUse of transcripts/medical records in defense
• Not Always a “Right Answer”Not Always a “Right Answer”
Thank You!
Kara M. Miller, Esq.Franklin & Prokopik32 South Washington St., Suite 6
Easton MD 21601(410)820-0600
Additional Offices:
Baltimore MD Hagerstown MD Herndon VA
Martinsburg WV T Tampa FL Wilmington DE