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The New ADAAA Regulations: How They Impact Leave of Absence Management

By Martha J. Cardi, Chief Compliance Officer, Reed Group

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) made important changes to the definition of the term “disability” to make it easier for an individual seeking protection to establish that he or she has a disability within the meaning of the ADA.

The employment law world has been waiting for over two years for the issuance of regulations interpreting the ADAAA. That wait is now over: The final regulations, known as the “Final Rule,” were published in the Federal Register on March 25, 2011.

No doubt, by now you have already seen many newsletter and blog articles summarizing the new regulations. In tandem with the issuance of the Final Rule, the EEOC itself has published interpretive materials that explain the ADAAA and the Final Rule. At the end of this article are links to the EEOC materials. These materials and other websites, newsletters, or blogs effectively explain in general the changes to the ADA wrought by the ADAAA and its new regulations.

Reed Group has analyzed how these changes impact leave of absence management. For simplicity, we will refer to the “ADA” and the “regulations” to encompass both the originals and the recent amendments, unless a distinction is important.

 
1. Build the ADA Interactive Accommodation Step into All Health-Related Leave of Absence Management Processes
Many employers mistakenly treat their obligations under the ADA separate from and unrelated to their management of health-related leaves of absence under the Family Medical Leave Act (“FMLA”), similar state leaves, company medical or disability leaves and Workers’ Compensation. With the passage of the ADAAA and the Final Rule, it is more important than ever to integrate the ADA accommodation process into all leave procedures. The “disability” threshold is now lower, which makes it easier for an employee to come under the protection of the Act. According to Congress and the EEOC, what constitutes a disability should not require extensive analysis. The focus is now on whether the employer attempted to accommodate the employee’s impairment, and whether the employer discriminated against the employee because of his or her disability.

Accordingly, when administering an employee’s leave of absence, employers must consider the applicability of the ADA when the employee’s leave is exhausted or denied. This may include an extension of a leave previously granted under law or a company policy, or it may mean granting a leave of absence when the employee is not otherwise entitled to one (such as when the employee is not eligible for FMLA leave). An employer’s duty to engage in the interactive process and make a reasonable accommodation is not necessarily fully satisfied upon the employee’s return to work from leave, even if that leave was provided all or in part as an accommodation under the ADA. If the returning employee is disabled or now has a record of a disability, the employee may need – and be entitled to under the ADA – additional accommodations upon return to work, such as time off for doctor’s appointments or therapy sessions, or physical workplace modifications such as accessibility changes or special equipment.

The employer may also have a duty to accommodate an employee no longer impaired but with a record of impairment, for example if follow-up doctors’ appointments, tests, or therapy is needed and related to the past disability. 29 C.F.R. § 1630.2(k)(3).

Reed Group has long encouraged employers to make the interactive accommodation process a part of their leave of absence procedures. See, e.g., articles in Reed Group’s recent newsletters: $3.2 Million Decree Reminds Employers: Leaves Of Absence And ADA Accommodation Go Hand In Hand, 2011 First Quarter, http://www.reedgroup.com/resources/ReedGroup-Newsletter-0211.pdf; and Following FMLA Leave, Don’t Forget The Ada Interactive Accommodation Process!, September 2010, http://www.reedgroup.com/resources/ReedGroup-Newsletter-0910.pdf.

2. “We Don’t Allow That for Other Employees” Doesn’t Avoid ADA Accommodation Obligations
Employers frequently struggle with providing a disabled employee with a workplace or position modification that other employees have requested and been denied. The accommodation obligation under the ADA has always required employers to amend workplace rules or policies or to provide special aid, equipment, or other assistance if necessary to enable an otherwise-qualified disabled employee to perform the essential functions of his position.

The Final Rule has made this clear by specifying that non-disabled employees do not have a reverse discrimination claim for being denied the same treatment afforded to the disabled employee:

Claims of no disability. Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to discrimination because of his lack of disability, including a claim that an individual with a disability was granted an accommodation that was denied to an individual without a disability.
29 C.F.R. §1630.4(b).

3. Definitions of “Disability” Vary Greatly
The definition of a “disability” for purposes of ADA protection can differ greatly from the definition for other purposes. The ADA employs a “three-pronged” definition:

  • A physical or mental impairment that substantially limits one or more major life activities as compared to most people in the general population (an “actual disability”), or
  • A record of a physical or mental impairment that substantially limited a major life activity (“record of”), or
  • When a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”).

29 C.F.R. § 1630.2(g)

The regulations provide extensive and detailed definitions of “physical or mental impairment,” “major life activity,” “substantially limits,’ and other key terms. Specifically, the Final Rule notes that whether an impairment “substantially limits” a major life activity is at a lower threshold than it had been prior to the ADAAA.

Compare the various components of the ADA definition of a “disability” in the Final Rule with a “serious health condition” under the FMLA and similar state leaves or with the definitions of disability under company short- or long-term disability plans, company medical leaves, etc. No two are alike. Thus, for example, a determination that an employee does not qualify for STD benefits does not obviate the need to analyze whether the same employee with the same condition might be entitled to a workplace accommodation or an additional leave of absence under the ADA.

The Final Rule explicitly recognizes the possibility of differing definitions of disability:

Nothing in this part alters the standards for determining eligibility for benefits under State Workers’ Compensation laws or under State and Federal disability benefit programs.

29 C.F.R. § 1630.1(c)(3).

4. The Reduced Threshold for “Disability” May Impact Other Employee Leave Rights
Some legal obligations surrounding leaves of absences are tied to the ADA definition of a “disability.” The change in the definition will make it much easier for individuals to demonstrate that they meet this definition
for other purposes.

For example, the FMLA provides a parent with leave of absence to care for an adult child (age 18 or older) only if the adult child is “incapable of self-care because of a mental or physical disability” at the time that FMLA leave is to commence. For this purpose “physical or mental disability” is defined with reference to the ADA regulations, as amended by the Final Rule.

Thus, in determining whether a parent may take leave to care for an adult child with a serious health condition, the more-easily-satisfied definition of a “disability” will apply.

5. Beware of “Regarding” an Employee as Disabled

In what may seem like a Catch-22, the “regarded as” disability protection may present difficulties to employers assessing an employee’s mental or physical condition for other purposes. “Regarded as” discrimination occurs when an employer takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory (expected to last less than six months) and minor. 29 C.F.R. § 1630.2(g)(1)(iii). An employee who is not
“disabled” under the ADA may nonetheless have a physical or mental condition for which he is entitled to consideration for a leave of absence under other laws or benefits, such as the FMLA or a company leave policy. Without using care in how the employee’s condition is assessed, and regardless of whether the employee receives a leave of absence based on other laws or policies, the employer may create ADA liability for itself by taking prohibited actions due to its perception with regard to the employee’s condition, even though the employee is not disabled for the purposes of the ADA.

There is one glimmer of good news for employers in the Final Rule. An employer is not required to provide a reasonable accommodation to an individual whose only ADA claim is that he was “regarded as” disabled. 29 C.F.R. § 1630.2(o)(4).

Conclusion
With the passage of the ADAAA and the Final Rule, employers must be more alert than ever of their duties under the ADA. Conditions not previously considered a disability under the Act are now protected conditions almost automatically. Training of supervisors and incorporation of the interactive accommodation process into all health-related leave of absence policies and procedures are an employer’s best lines of defense and should be undertaken immediately.

 

Resources available from the EEOC website:

EEOC Disability page

EEOC ADAAA page

Text of the ADAAA

EEOC’s Notice Concerning The Americans With Disabilities Act (ADA) Amendments Act of 2008

Final Regulations Implementing the ADAAA (PDF)

Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008

Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008

Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA


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