Tag Archives: Americans with Disabilities Act of 1990

Another Law Prohibiting Discrimination Against Pregnant Women

Contributed by Karuna Brunk

Members of the U.S. House of Representatives and the Senate have introduced bills to add workplace protections for pregnant women.  The bills are modeled on the Americans with Disabilities Act, which offers certain accommodation protections for employees with disabilities. 

The Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act of 1964, already protects pregnant women from employers discriminating against them through hiring, firing, pay, and job assignments.  Additionally, the Americans with Disabilities Act currently entitles pregnant women to some accommodations based on certain pregnancy-related impairments.

Despite these existing protections, sponsors of the Pregnant Workers Fairness Act argue that the new law would close legal loopholes for pregnant women.  The law would specifically require employers to offer reasonable accommodations for pregnant workers.  For example, employers may be required to offer seats for pregnant workers in standing jobs, put in place lifting restrictions for pregnant women, or give pregnant workers the right to carry water or food on the job site.  The law would also explicitly prohibit employers from refusing to hire or promote a pregnant worker based on her need for accommodation. 

As discussed above, Title VII already prohibits discrimination based on pregnancy, and the ADA offers pregnant workers certain protections.  Thus, regardless of the potential of a new law, employers should be mindful of the following:

  • Treat pregnant women the same as all workers in the workplace through the hiring, firing, and promotion process.
  • The EEOC considers pregnancy conditions as a type of temporary disability.  Therefore, you must provide pregnant workers with the same type of accommodations that you would provide other individuals with disabilities – if you would provide another worker with an accommodation for lifting because of a back injury, for example, you should provide a pregnant worker with a similar accommodation if necessary.  This also applies to leave requests. 
  • The Family Medical Leave Act also comes into play for pregnant employees – eligible pregnant workers may take FMLA leave.  Therefore, disciplinary, termination, and layoff decisions need to be carefully considered when they involve individuals who have exercised their rights under the FMLA to avoid potential allegations of discrimination, retaliation, or interference.   

Finally, because pregnancy discrimination issues can be complicated and span multiple laws, it is a good idea to consult an attorney to discuss strategies, discipline measures, and how to appropriately handle medical leave.

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.

Beware of the EEOC’s Continued Efforts to Bring Class Actions Against Employers

Contributed by Sara Zorich

January 11, 2013 was a victory day for the Equal Employment Opportunity Commission (EEOC) in the matter of EEOC v. UPS, 2013 U.S. Dist. LEXIS 4462 (N.D. Ill. Jan. 11, 2013) and a day on which employers should take note that courts have made it less burdensome in the Northern District for the EEOC to bring class action lawsuits against employers.

In 2009, the EEOC filed a complaint on behalf of Trudi Momsen (Momsen) and other unidentified class members alleging that United Postal Service (UPS) violated the Americans with Disabilities Act (ADA) by permitting Momsen and the other class members only twelve-month leaves of absence and failing to provide them with reasonable accommodations for their disabilities.  The court dismissed the complaint on the basis that the EEOC had failed to plead that Momsen and others were qualified individuals under the ADA.  The EEOC then filed an amended complaint pleading additional facts about Momsen, added an additional individual and plead more specific facts stating that the unidentified class members were qualified individuals able to perform the essential functions of their job and that UPS failed to reasonably accommodate these unidentified individuals.  The EEOC did not plead any specific facts with regard to any of the unidentified individuals.  The court once again dismissed the EEOC’s complaint on the basis that it failed to plead any specific facts regarding the unidentified individuals.  The EEOC then sought leave to file a second amended complaint that added the claim that the unidentified individuals were part of a common scheme to terminate individuals with disabilities through an alleged inflexible process and lack of individual analysis, which the Court denied.

In response to the court’s denial, the EEOC then filed a motion requesting the district court to certify the matter for appeal to address whether the EEOC must plead individual facts regarding class members.  In its response to the EEOC’s motion, the court reviewed its prior rulings, reviewed the case law and reversed its prior dismissals of the EEOC complaints.  In a change of stance, the court held that the EEOC’s first amended complaint met the sufficient pleading standard since it identified “the statutes that UPS allegedly violated; the time frame in which the alleged violations occurred; the names of two presently identified victims; a general description of the class of aggrieved persons; the specific claims alleged and their elements as to the charging party and the class of aggrieved persons; the types of conduct to which the named claimants and the unidentified class were subjected; and the remedies being sought.”  Thus, the court changed its previous view and now found that the EEOC did not have to plead any specific facts about unidentified class members in order to survive a motion to dismiss.

Take away: Employers should be cognizant that the EEOC is aggressively pursuing class actions against employers.  Furthermore, based on the ruling in this matter, the EEOC may file a class action without having to plead any specific evidence regarding unidentified class members.  This does not mean that the EEOC will be victorious on the merits of the case, but rather that this minimal pleading will allow them to survive a motion to dismiss.

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.

Cerebral Accommodation: ADA Claims for Mental, Psychological, Psychiatric and Intellectual Deficit Disabilities – A few thoughts – Part 1

Contributed by Terry Fox

Recognized disabilities protected under the ADA have expanded, following the Congressional Amendments to the ADA of 2008 (eff. Jan. 1, 2009).  These expanded protections now include more disabilities “of the mind,” in addition to more concrete physical infirmities. “Disability” now includes limitations on major life activities of cognitive and mental processes.   Essentially, the EEOC has extended “disability” to the life activity of “thinking,” as evidenced by its revised compliance manual and regulations.

This expansion presents considerable concern for the employer. Confirming and understanding a mental or cognitive disability can be a difficult process to navigate, and accommodating such a disability can require some level of sophistication and, in some cases, a little creativity. It is clear that where there is a professional diagnosis of a mental condition, particularly where the DSM-IV diagnostic codes are utilized, the employer can generally accept the professional diagnosis as substantiation of a disability.  Of more concern is a situation where the family or nurse practitioner provides a diagnosis of Attention Deficit Disorder or a similar problem or a notice of disability, for example in Carlson v Carroll University (involving student under Title II of ADA). If the diagnosis is unclear or non-existent, the employer may refer the employee to a qualified medical professional for review and assessment.  However, the medical review-assessment must be job-related and consistent with business necessity.  All records concerning the employee’s condition must be stored in a separate, confidential file.    

The starting point for any employer is to focus on the claimed disability.  An ADA disability requires either a physical and/or mental impairment, coupled with a substantial limitation of one or more major life activities caused by said impairment. For example, fear, which is a cognitive or thinking process, itself does not implicate a “disability.”  Late night employees at a Florida Sonic Drive-In were present for one or more armed robberies, including an instance where a gun was put to the head of an employee and she was told she’d be killed. All employees articulated fear of working that shift and asked for a change to daytime work.  Those employees were terminated and they sued under the ADA, claiming both to be disabled and for being treated as disabled by their employer.  Wallner v. MHV Sonics, Inc.  Fear of future robbery was found to be transitory and minor, and the employer was not liable under the “regarded as disabled” prong where the condition was transitory and minor.  Similarly, fear of cancer and fear of snakes, without more, do not qualify as “disabilities.”  Fear of large social settings is not a disability because it is not atypical of the general populace.  Bialko v. Quaker Oats Co. 

In the next installment, we’ll address specific issues regarding accommodation. . . .