Tag Archives: ADA Amendments Act of 2008

On Second Thought, That Bum Shoulder Is a Disability

Contributed by Beverly Alfon

A federal appellate court unanimously found that an individual’s difficulty with lifting his right arm above his shoulder, constituted a disability under the ADA Amendments Act of 2008, which amended the Americans with Disabilities Act of 1990 (ADA), Cannon v. Jacobs Field Services North America, Inc., Case No. 15-20127 (5th Cir., 1/13/16).

In this case, a construction firm offered the plaintiff, Michael Cannon, a job as a field engineer. Cannon participated in a pre-employment physical, which revealed a rotator cuff injury. The doctor cleared him for work, but only with accommodations: no driving of company vehicles, no lifting, no pushing or pulling of more than 10 pounds, and no working with his hands above shoulder level. On the same day the company received the doctor’s paperwork, they determined that Cannon was not physically capable of performing the job and then rescinded the offer. The company told Cannon that the construction worker-ladderreason for the rescission was his inability to climb a ladder – an essential function of the job. Despite Cannon’s multiple attempts to prove otherwise (even sending a video of himself doing so), the company ceased communication. Cannon filed suit. The lower court granted summary judgment to the company, concluding that the injured rotator cuff did not constitute a disability under the ADA.

The appellate court reversed the lower court, finding that the lower court ignored the ADA amendments’ more relaxed standard of “a degree of functional limitation” versus the higher standard of “substantially limits” a major life activity. The appellate court also found that the company’s “belief” that Cannon suffered from a substantial impairment was also enough to satisfy the disability element of the claim. Ultimately, the court concluded that the company “never cited a reason for rescinding Cannon’s offer […] which is divorced from his physical impairment.”

This brought the court to the next question of whether or not, despite Cannon’s impairment, he was still qualified for the field engineer position. The court reasoned that in light of evidence that the candidate could climb a ladder (i.e., the video footage), it was enough to reverse summary judgment and force the case to jury trial. The Court pointed out that had the company conducted a more thorough inquiry after learning about the injury, it would have been able to get to the bottom of the ladder climbing question.

Bottom line:  The ADA 2008 amendments made it much easier for a plaintiff to establish a disability. Your defense should focus on the issue of whether or not an individual is qualified for the position, despite any impairment. This requires you to fully engage in the interactive process and build a solid record of evaluation of the candidate’s qualifications before making a decision to rescind an offer.   

Guidance Issued for Use of FMLA to Care for an Adult Child

Contributed by Jon Hoag

This month, the U.S. Department of Labor (USDOL) issued an Administrator’s Interpretation and Fact Sheet to clarify when an employee may take FMLA leave to care for an adult child.  In order for a parent to take FMLA leave to care for a child age 18 or older, the parent must establish that:  (1) the child has a disability as defined by the Americans with Disabilities Act; and (2) the child must be incapable of self-care.  The USDOL issued guidance to clarify the age requirement, the impact of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) as related to the definition of a disability, and the guidance explains the FMLA leave available to parents whose son or daughter becomes disabled during military service.

The Age of Child at Onset of the Disability is Irrelevant

The guidance clarifies that the onset of a disability may occur at any age for purposes of the definition of a “son or daughter” under the FMLA.  There is no requirement for the disability to have occurred or been diagnosed prior to the age of 18.

ADAAA’ s Broader Definition of Disability Applies

The USDOL confirmed that the ADAAA broadened the scope of coverage and expanded the ADA’s definition of “disability.”  This expanded definition of “disability” is the one that applies to determine if an adult child has a “disability” for purposes of the FMLA.  The USDOL’s conclusion states very simply that the ADAAA’s expanded definition of the term “disability” will enable more parents to take FMLA-protected leave to care for their adult sons and daughters with disabilities and that are incapable of self-care.  The guidance also notes that the child’s condition must also be a “serious health condition” under the FMLA, which will almost always be the case if the condition is a disability under the ADAAA.

Given that the ADAAA’s definition of disability is broad in scope and will be met in most cases, employers should review FMLA requests to care for an adult child with special attention given to the requirement that the parent be needed to care for the child because the child is incapable of self-care.  For FMLA leave purposes, an adult child will be considered “incapable of self-care” if he or she requires active assistance or supervision in three or more activities of daily living (ADLs) or instrumental activities of daily living (IADLs).  Examples of ADLs and IADLs are:

ADLs

  • Caring appropriately for one’s grooming and hygiene
  • Bathing
  • Dressing
  • Eating

IADLs

  • Cooking
  • Cleaning
  • Shopping
  • Taking public transportation
  • Paying bills
  • Maintaining a residence
  • Using telephones and directories
  • Using a post office

FMLA Leave when Adult Child is Disabled During Military Service

The guidance also clarified that a parent of an adult child disabled during military service may be entitled to take more than the 26 workweeks within a 12-month period currently provided in the FMLA as military caregiver leave.  If the disability lasts longer than the single 12-month period, the parent may qualify for additional FMLA leave in subsequent FMLA periods to care for an adult child with a disability that is incapable of self-care.

Conclusion

As the USDOL guidance makes clear, the changes to the ADA definition of “disability” will undoubtedly allow more parents to take protected FMLA leave.  In addition to the increase in volume of FMLA leave requests, the other issue we expect to trouble employers is whether an impairment of short-term duration is a disability.  We will continue to monitor and report on these types of ADAAA cases because the EEOC’s regulations do not make it clear when impairments of short-term duration qualify as a disability.

Ten Steps to Comply with the ADA’s Interactive Process

Contributed by Allison Chaplick

When I was learning a foreign language, such as French, Spanish or Italian, a good rule of thumb teachers engrained in my brain was that to really get a grasp on a new word or phrase, you have to repeat or use that word or phrase ten times.  It seems like a lot to ask, but really, it holds true. This rule nicely translates in the language that at times can seem like Greek to us: the Americans With Disabilities Act Amendments Act of 2008 (ADAAA) and its interactive process.   

Now that the ADAAA’s definition of “disability” had been expanded to what seems to be the maximum extent possible, thus covering more individuals with disabilities than ever before, employers will now have to engage in the interactive process more than ever before.  Here are ten steps for understanding and properly using the interactive process:

  1. The interactive process is idealistically a means for determining what reasonable accommodations are available to allow a disabled employee (or applicant) to perform essential job functions.
  1. The interactive process requires an employer to be proactive and work with the employee so that both identify the employee’s limitations and accommodations which might enable the employee to continue working.
  1. The employer should initiate the interactive process by analyzing the employee’s job functions to establish the essential and non-essential job tasks and identify barriers to job performance by consulting with the employee to learn about the exact limitations and what types of accommodations would be most effective.
  1. Ways to engage in the interactive process include meeting with the employee, exchanging letters, holding telephone conversations, requesting information about the employee’s limitations, considering the employee’s requests and discussing reasonable and effective alternatives if the request is an undue burden.
  1. During the interactive process, the employer should also give the employee an opportunity to discuss his/her abilities, restrictions and ideas for an accommodation, and should also meet with the employee’s supervisor to discuss the reasonable accommodation.
  1. The employer’s response during the interactive process to a request for a reasonable accommodation should be “expeditious,” but need not be immediate.
  1. An employer who takes an active good faith role in the interactive process will not be liable if the employee refuses to participate in the interactive process or withholds essential information during the interactive process. 
  1. At the conclusion of the interactive process, unless an undue hardship is found, the reasonable accommodation provided should be effective to allow the employee to perform the essential functions of his/her job.
  1. An employer sufficiently engages in the interactive process where it grants an effective accommodation, but not necessarily the accommodation requested by the employee. 
  1. An employer is not engaging in the interactive process where the employer denies an employee’s request without providing a meaningful dialogue or explanation of its decision.

The U.S. Equal Employment Opportunity Commission has published a very informative guideline, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act  to help employers understand their responsibilities and rights when a qualified employee (or applicant) with a disability requests a reasonable accommodation.