February 20, 2009

1. Times of Change and Your HR Responsibilities Presenters Chuck Campbell & Matt Dow Jackson Walker L.L.P. 401 Congress Avenue, 14th Floor, Austin, TX 78701  512-473-4520 February 20, 2009

2. Overview: • Why do we have the ADA? • What did the ADA originally say? • How was the ADA interpreted? • What caused the ADA to be changed? • How has the ADA been changed? • What difference will this make to you?

3. Who Is Covered Under the ADA? • ADA prohibits discrimination against any qualified individual with a disability and requires employers to provide reasonable accommodations to enable such individuals to perform the essential functions of their job • It is not always apparent which employees or prospective employees are “disabled.”

4. Who Is Covered Under the ADA? • At the outset, it was obvious that a person walking into your office with a cane and dark glasses or arriving in your office in a wheelchair was “disabled.” • But the drafters of the ADA had larger ambitions and wanted to include more people within the category of “disabled” individuals. • So they set about defining “disability” more broadly.

5. Who Is Covered Under the ADA? • But they also had to recognize that employers should not be obligated to hire a person with a disability who was not qualified to work. • This led to the concept of the “qualified individual with a disability.”

6. Who Is Covered Under the ADA? • The ADA accordingly prohibited discrimination against any qualified person who • had a disability and who, • with or without reasonable accommodation, • could perform the essential functions of the job in question.

7. ADA: The Early Experience • At the beginning of the ADA’s application to the workplace, the anticipated claims were made • blind individuals denied an opportunity to perform tasks for which they were qualified; • wheelchair bound individuals claimed they could operate a computer if the keyboard and the screen were modified to permit them to have access to it; • diabetics claimed their frequent need to take medication required that they be accommodated with additional absences.

8. ADA: The Early Experience • Unfortunately, there were also the “other claims,” such as • worker who went on a violent rampage in the workplace and then claimed his termination was a violation of the ADA because he had a psychological impairment at the time and was otherwise qualified to do his job, or • truck driver who claimed he was not hired in violation of the ADA because his vision was too poor to see the roadway but who claimed that he could and should have been accommodated.

9. Death Knell for the Original ADA:Sutton v. United Air Lines • The struggles the courts had with claims like these reached its apex in 1999, when a trio of cases came before the U.S. Supreme Court. • The most prominent of these was Sutton v. United Air Lines.

10. Death Knell for the Original ADA:Sutton v. United Air Lines • In the Sutton case, two women sued United Air Lines because they were excluded from its pilot training program. • They were twin sisters who had severe myopia. Without corrective lenses, they could not see to conduct numerous daily activities; with corrective measures, both allegedly were able to function identically to individuals without similar impairments.

11. Death Knell for the Original ADA:Sutton v. United Air Lines • They applied to be commercial airline pilots, but were told by United Air Lines they could not qualify because it had a requirement that pilots have uncorrected vision of 20/100 or better. • Their uncorrected vision was 20/600. • They then sued under the ADA, claiming that their severe myopia was a “substantially limiting” impairment, entitling them to be classified as “disabled.”

12. Death Knell for the Original ADA:Sutton v. United Air Lines • The Supreme Court rejected their claim. • “Looking at the Act as a whole, it is apparent that if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures––both positive and negative––must be taken into account when judging whether that person is ‘substantially limited’ in a major life activity and thus ‘disabled’ under the Act.”

13. Death Knell for the Original ADA:Sutton v. United Air Lines • The Court concluded that a person could only be “disabled” within the meaning of the ADA if the person was presently—as opposed to potentially or hypothetically—substantially limited in a major life activity. Thus, if an impairment could be corrected by mitigating measures, the Court held that the impairment did not “substantially limit” a major life activity

14. Sutton v. United Air Lines • The dissent pointed out that the impact of the ruling by the Court would be to exclude a person with an artificial limb from being “disabled” because the artificial limb was a “corrective device” enabling the individual to enjoy most of life’s major activities.

15. ADAAA Findings & Purpose • Sutton took away ADA protection for people who should have it; • Supreme Court held that “mitigating measures” such as insulin to control diabetes must be considered in determining whether an impairment qualifies as a disability; • ADAAA prohibits ameliorative effects of mitigating measures • Reinstate broad scope of protection Congress intended under ADA

16. The Amendments –Definition of Disability • A physical or mental impairment that substantially limits one or more major life functions • Greatly expands the scope of employees covered by changing the interpretations of terms • Definition of disability must be broadly construed • Whether an individual’s impairment is a disability under the ADA should not demand extensive analysis • What does “substantially limits” mean?

17. The Amendments –Definition of Disability (cont’d) • Major Life Activities • performing manual tasks • learning • concentrating • thinking • communicating • walking • seeing • breathing

18. The Amendments –Definition of Disability (cont’d) • A Major Life Activity now includes Major Bodily Functions: • “[F]unctions of the immune system” • Digestive functions • Bladder functions • Respiratory functions • Reproductive functions

19. The Amendments –Definition of Disability (cont’d) • Before employees only covered if employer regarded employee as having an impairment and regarded that impairment to substantially limit a major life activity • Now, employee only has to prove employer regarded them as having an impairment • Thus – regarded as having “such an impairment” really means regarded as having an impairment. • Episodic impairments and those in remission may be disabilities

20. The Amendments –Definition of Disability (cont’d) • ADAAA expressly rejects consideration of the effects of mitigating measures • Mitigating measures include medication, medical supplies, low vision devices (other than eye glasses or contact lens), prosthetic limbs and devices, hearing aids, mobility devices, oxygen therapy equipment, reasonable accommodations or auxiliary aids and services, or learned behavioral or adaptive neurological modifications

21. Reasonable Accommodation Law Unchanged • The ADA provides a right to reasonable accommodation, not to the employee’s preferred accommodation. Hedrick v. Western Reserve Care System, 355 F.3d 444, 457 (6th Cir. 2004). • EEOC Appendix A to regulations: “[T]he employer providing the accommodation has the ultimate discretion to choose between effective accommodations...”

22. Reasonable Accommodation Law Unchanged • Employee must notify employer that adjustment or change is necessary • Request can take many forms and employee not required to specifically mention the “ADA” or “reasonable accommodation” • Interactive process!

23. Is There Any Good News? • Reasonable accommodation unchanged • Carved out exception for eye glasses and contacts as mitigating measures • “Regarded as” does not cover minor or transitory impairments – those lasting 6 months or less (or expected to last 6 months or less) • Reverse discrimination claims prohibited • Still must be “qualified” to perform essential functions

24. Going Forward • Don’t assume no coverage unless truly minor condition that will not last 6 months; • Tighten up job descriptions paying special attention to essential functions; • Train supervisors on new definitions to avoid “regarded as” claims; • Carefully document valid, non-disability related reasons for any job action.

25. Going Forward • Focus of litigation will now be on whether employer failed to reasonably accommodate, not on whether employee was actually disabled; • Must perform and document reasonable accommodation process-interactive; • Draft reasonable accommodation policy that tracts EEOC regulations; • Prepare to grant more requests for accommodation than in past.

26. NEW FMLA REGULATIONS • Includes overhaul of original regulations-does differ from proposed regulations • Adds new regulations addressing the National Defense Authorization Act of 2008, which amended the FMLA to provide for Military Family Leave

27. MEDICAL CERTIFICATION PROCESS – TIMING • Employers may request medical certification up to five days after the employee has either given notice of need for leave or, in the case of unforeseen leave, the date the employee begins leave. • Employer may also require a new medical certification each leave year for conditions that last longer than a year. • Employer may request a recertification every six months if the leave involves an on-going “serious medical condition.”

28. MEDICAL CERTIFICATION PROCESS – CONTENT • If employer determines medical certification is incomplete or insufficient, required that the employer inform the employee of the deficiencies in writing and provide seven calendar days to cure the deficiency. • An employer can contact the employee’s healthcare provider for clarification of information contained in medical certification. • Employer’s representative must be a healthcare provider, human resources professional, leave administrator, or a management official but never direct supervisor.

29. FITNESS-FOR-DUTY CERTIFICATIONS • Employer may require that a fitness-for-duty certification specifically address the employee’s ability to perform the essential functions of the job. • If employer has reasonable safety concerns, may require an employee on intermittent leave to provide a fitness-for-duty certification before returning to work.

30. EMPLOYER NOTICE OBLIGATIONS • Employers must post a general FMLA notice in the workplace and include the notice in the company’s employee handbook (use DOL form) • Electronic posting • Employers must provide a personalized eligibility notice when an employee requests FMLA leave or the employer has knowledge that leave may be FMLA qualified (use DOL form)

31. EMPLOYER NOTICE OBLIGATIONS • Employers must issue a “rights and responsibilities” notice detailing the employee’s obligations to provide a medical certification, the right to substitute paid leave, etc. (use DOL form) • Require employers to issue a designation notice within five days after receiving sufficient information to determine that leave will be covered, notifying the employee that the leave has been designated as FMLA leave. • Increased liability for failure to provide timely notice.

32. EMPLOYEE NOTICE REQUIREMENTS • Employee must follow the employer’s normal and customary call-in procedures, unless there are unusual circumstances • New regulation modifies requirement that employees notify their employers of need for FMLA leave up to two days after an absence; follow employer policy

33. SERIOUS HEALTH CONDITION • New regulations do not change the six individual definitions of a serious health condition • The two visits to a healthcare provider must occur within thirty days of the incapacity • First visit must occur within seven days of the start of the incapacity • “Periodic visits to a healthcare provider” require at least two visits to a healthcare provider per year

34. DISPUTE RESOLUTION • If a dispute arises between an employer and an employee as to whether leave qualifies as FMLA leave, it should be resolved through discussions between employee and employer. • The discussions and decision must be documented.

35. WAIVER OF RIGHTS • Employees may now voluntarily settle their FMLA claims without court or DOL approval • Prospective waivers of FMLA rights are prohibited • Employers should modify releases to include waiver of FMLA claims

36. WHAT SHOULD EMPLOYERS DO? • Update policies and procedures to include new regulations • Train supervisors to be aware of changes • Improve communications with employees • Discuss and document FMLA disputes • Use DOL forms

37. MILITARY-RELATED FMLA LEAVE • Two new types of Military Family Leave created • Military care giver leave • Qualifying exigency leave • Unless otherwise noted, normal FMLA procedures apply

38. General Provisions Twelve weeks of FMLA leave available while employee’s spouse, son, daughter, or parent is on active duty or call to active duty for qualifying exigencies

39. Defining “Active Duty” Exigency leave applies only to members of the Reserve and National Guard, and certain retired members of the Regular Armed Forces and Retired Reserve. Excludes active members of the Regular Armed Forces. Applies only to a Federal call to active duty of a National Guard or Reserve member. A State call to active duty of National Guard or state militia is not included within this section unless under order of the President.

40. Qualifying Exigencies Short-notice Deployment Military Events and Related Activities Childcare and School Activities Financial and Legal Arrangements Rest and Recuperation Post-Deployment Activities Counseling Additional Activities

41. Short-Notice Deployment Applies when a covered military member is notified of an impending call to active duty in support of a “Contingency operation” 7 or less days from date of deployment Provides 7 days of leave from the date military member is notified of call of duty

42. Military Events and Related Activities Leave is permitted to attend an official ceremony, program, or event sponsored by the military that is related to active duty or call to active duty, and To attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organization, or American Red Cross that are related to active duty or call to active duty

43. Childcare and School Activities Allows leave to be taken for a child who is either under 18 or 18 or older and incapable of self-care because of a mental or physical disability in order to: Arrange for alternative childcare Provide childcare on an urgent, immediate need basis Enroll the child or transfer the child to a new school or daycare facility Attend meetings with staff at school or daycare facility

44. Financial and Legal Arrangements To make or update financial or legal arrangements to address the covered military member’s absence while on active duty or call to active duty status, and To act as the covered military member’s representative before a federal, state, or local agency to obtain, arrange, or appeal military service benefits while the member is on active duty or call to active duty status, and for 90 days following termination of active duty status.

45. Rest and Recuperation Allows up to 5 days leave to spend time with a military member who is on short-term, temporary rest and recuperation leave during the period of deployment.

46. Post-Deployment Activities Allows leave to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for 90 days following termination of covered member’s active duty (not literal 90 days but until the end of the Dep’t of Defense “Yellow Ribbon Reintegration Program”) And allows leave to address issues that arise from the death of a member while on active duty

47. Counseling Allows leave to attend counseling provided by someone other than a health care provider (because otherwise covered under traditional FMLA) for oneself, the military member, or child under 18 (or 18 or over and incapable of self-care because of mental or physical disability). Need for counseling must arise from the active duty or call to active duty status of covered military member.

48. Additional Activities Allows leave to address other events which arise out of covered military member’s active duty or call to active duty status. Employer and employee must agree that such leave will qualify as an exigency, and agree to both the timing and duration of the leave.

49. Certification Requirements for Qualifying Exigency

50. Active Duty Orders The first time an employee requests leave because of a qualifying exigency, may require copy of active duty orders or other military-issued documentation indicating active duty status and the dates of the active duty service. This information need only be provided once. May require a copy of new active duty orders if the need for leave arises out of a different active duty of the same or different covered military member.