Sixth Circuit Revives ADA Claims

Yesterday, the Sixth Circuit reversed an employer’s summary judgment in an ADA failure-to-accommodate/constructive discharge/retaliation dispute where the employer allegedly had a policy of never accommodating non-work related disabilities (i.e., chronic conditions or off-work injuries) and apparently never requested the employee to produce updated medical documentation of her need for her requested accommodation before denying the requested accommodations.  Morrissey v. Laurel Health Care Co., No. 18-1704 (6^th Cir. 2019).  The Court also rejected a “de minimis” exception to failure-to-accommodate claims where the employer only twice rejected the employee’s allegedly requested accommodation before she quit.  The Court also reversed dismissal of her constructive discharge and retaliation claims on the grounds that she produced enough evidence of a factual dispute to show a jury.  Importantly, the most recent medical statements provided by the employee to the employer indicated that she had no medical restrictions, but the employer also failed to require her to provide updated medical restrictions when she allegedly again raised the issue.  Rather, the employer seemed to deny that she ever made the requested accommodations.


The Background.

According to the Court’s opinion, a long-time employee produced three medical statements in 2012 indicating that she could not work more than 12 consecutive hours per day and the last such statement indicated that the restriction was only in place until her next appointment.  No other medical documentation was provided by the employee or apparently requested by the employer. Following her 2015 carpal tunnel surgery, she was released to work without any medical restrictions, but the employee alleges that she told the employer that her former 12-hour work restriction remained.   (The court found the existence of the 12-hour medical restriction to be a factual dispute because the plaintiff argued that it continued to the present and the employer argued that it expired no later than March 2012 or August 2015).  Several witnesses and documents indicate that in February 2012, the employer announced a policy of no longer accommodating non-work related medical restrictions, but the employer denied this.


In December 2015, the employer implemented 12-hour shifts in most of its units.  The plaintiff alleged that she requested to transfer into positions where she would work no more than 8 hours/shift, but claims that she was denied.  The employer denies that she made any such request and points out that she had seniority to transfer into 8-hour positions.   Nonetheless, the Court agreed that there was no indication prior to January 30, 2016 that that she had ever been required to work more than 12 hours because at worse she clocked out within 15 minutes of the end of a 12 hour shift on only 8 different occasions.


She contacted the EEOC and corporate on February 1 after she was – for the first time—required to work 13.5 hours on January 30 over her alleged protest about her alleged 12-hour medical restriction.   The manager allegedly told her that she knew nothing about any medical restrictions in her file and had “no control” over the scheduling.  However, when the employer’s corporate officer returned her call, she did not call him back.  There is no discussion about any failure of the interactive process by her refusal to return this call.  Four days later, the plaintiff was required to work a 16 hour shift (even though it was alleged not her turn on the mandatory overtime rotation list) and, when her protest about her alleged medical restriction was allegedly ignored, she quit.


Court’s Analysis

Failure to provide a requested accommodation constitutes direct evidence of discrimination under the ADA, but the trial court analyzed the claim under an indirect burden of proof.   The trial court also analyzed the existence of a disability under pre-ADAA law by requiring the plaintiff to provide a specific diagnosis and disputing that an inability to work overtime was a disability.   The Court found that the alleged medical restrictions on the plaintiff’s ability to walk, stand, bend, etc. was sufficient to satisfy her burden of proving that she was disabled without her also having to prove that she was limited in her ability to work.  

Moreover, she did not have to tell [the employer] about her specific diagnoses.  Morrissey told [the employer] that she could not work more than twelve-hours per shift because she suffered from a disability as defined by the ADA.  That was enough.

Although hindsight is 20/20, the plaintiff in this case did have plenty of medical records supporting her claimed disability if she had ever been asked for medical documentation and, as previously indicated, the Court found it to be a factual issue for the jury whether the employer was sufficiently put on notice of this by her requests for an accommodation and the two medical statements indicating that she had no medical restrictions.   In any event, the medical and other evidence satisfied the plaintiff’s burden of proving at the summary judgment stage that she had a disability so that the jury could resolve any disputed issues of fact.


The Court also found sufficient evidence to show that she had a record of a disability based on her allegations of frequently raising the 12-hour work restriction and the employer’s previous accommodation of that restriction before 2012.  It also found sufficient evidence that she was regarded as disabled because she was allegedly constructively discharged when the employer refused to accommodate her alleged medical restriction. This makes no sense to me under the facts as explained in the Court’s decision, but there it is.


The Court also found sufficient evidence to get to a jury about whether the employer failed to provide a reasonable accommodation.  As mentioned, there is the dispute about two medical statements, so the Court did not issue judgment in favor of the plaintiff.   Importantly, the plaintiff produced evidence about the employer’s (disputed) policy and practice of refusing to accommodate non-work related injuries or chronic medical conditions, the (disputed) refusal to transfer her into an 8-hour position, and the employer requiring her on two occasions within one week to work beyond her alleged medical restrictions.

The record shows that Morrissey asked [the employer] for an accommodation due to her disability, and [it] did not accommodate her.  She was not required to establish anything more for her claim to ripen. . . . This satisfies Morrisey’s burden under the direct evidence test applicable to a claim of failure to accommodate.

The Court rejected the trial court’s ruling that the employer’s actions were de minimis and did not constitute an actionable employment action:

First, however, the de minimis standard arises in the context of an adverse employment action, not a failure to accommodate.  Compare Arndt, 716 F. App’x at 527 with Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000).  Second, and more importantly, under the district court’s logic, an employer would be free to contravene a disabled employee’s restrictions a certain number of times or with an unspecified amount of regularity before the employer is liable.  Such a rule would be not only cruel, but it would also contravene our previous precedent and the ADA.

There was no discussion in the Court’s decision about the failure of the interactive process, which is interesting.  Employers who have prevailed on such claims in other cases were able to point to the employee’s failure to cooperate with permissible medical inquiries or to consider alternative accommodations, etc.


The Court also remanded the constructive discharge claim for the same reasons: “For the reasons described above, a dispute of material fact remains over whether Morrisey is disabled.  This claim is properly analyzed under the direct evidence test because Morrisey’s constructive discharge was premised on [the employer’s] failure to accommodate her.” A constructive discharge claim “requires a finding that ‘working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’”

In Talley, we stated that “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.’”   . . .  This case presents precisely that scenario.  Morrissey informed Coldwater numerous times of her twelve-hour restriction from 2012-2016, but Coldwater mandated Morrissey to work 13.5 hours on January 31, 2016.  When Morrissey told her manager that she had a disability that prevented her from working beyond twelve-hours, the manager told Morrissey that she had “no control” over the situation.  Five days later, Morrissey was informed that she was being mandated to work sixteen hours, even after Morrissey, again, told her supervisor that she was under a medical restriction.  When she complained to Hayes, Hayes stated there was nothing she could do.  In the face of Coldwater’s repeated failures to honor Morrissey’s accommodation requests, a reasonable plaintiff in her position would have felt compelled to resign.  Because Morrissey has shown that a reasonable juror could have found that she was constructively discharged, she has satisfied the adverse employment element.  Her claim for disability discrimination proceeds to trial.

The Court rejected the employer’s argument that its purported policy of accommodating only work-related injuries was legal: The employer “cannot refuse to provide Morrisey with a reasonable accommodation and then conclude that she is not qualified for her position because she cannot meet her job’s requirements without an accommodation.”


Finally, the Court reversed the dismissal of the retaliation claim on the basis that she satisfied her burden of showing constructive discharge, which can constitute an adverse employment action.  Her allegedly repeated requests for a 12-hour shift restriction constituted protected conduct under the ADA.   While the Court did not hold that every failure to accommodate will also constitute retaliation, the plaintiff satisfied her burden of showing retaliatory motive in this case because the assignment that she work 16 hours on her final shift was made out of order when another employee was allegedly due to be assigned mandatory overtime before her on the alleged overtime rotation list.  (The employer denied the existence of any list).


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects ADA Claims For Failure to Show a Disability or Failure to Accommodate

Last week, the Sixth Circuit Court of Appeals affirmed the summary judgment dismissal of an ADA claim on the grounds that the plaintiff failed to show that he was disabled, that the employer failed to provide him with a reasonable accommodation and that he had timely filed one of his claims within the 300 day limitations period.  Booth v. Nissan North America, Inc., No. 18-5985 (6^th Cir. 6-7-19).  The plaintiff’s physician indicated that he had some lifting and bending restrictions which, at worse, may have impacted his ability to perform a particular job.  “[J]ust because a plaintiff has work restrictions does not mean that he is disabled.”


According to the Court’s opinion, the plaintiff worked for more than a decade after his doctor gave him permanent medical restrictions on bending and reaching.  In 2015, he applied for a transfer, which was denied on account of those medical restrictions.  He sought reconsideration several times, but was again denied.  Shortly thereafter, the employer modified his assembly line position to require all of the employees to be able to perform four job functions instead of merely two.  When he informed the employer that the additional two job functions would violate his medical restrictions, he was temporarily kept in his two-function position.  In 2016, he was requested to update his medical restrictions with his physician because they were inconsistent with his current position.  He did so in 2017 and the physician modified the restrictions which would have prevented him from performing the additional job functions.  The plaintiff agreed with the restrictions and, once they had been modified, was able to perform the new job and continued to do so even throughout the litigation.


In November 2016, the plaintiff filed an EEOC Charge, which was dismissed for failure to show that he had a disability.  He filed a lawsuit challenging the failure to transfer him to the material handler position, and failing to accommodate his alleged disability.  The trial court granted the employer’s motion for summary judgment.


The plaintiff was informed in November 2015 that he would not be transferred into the material handler position because of his medical restrictions. Although he attempted to get that decision reversed, the supervisors and human resources explained to him that the decision would not change unless his medical restrictions changed.  He did not file his EEOC Charge until more than 365 days later even though the ADA requires Charges to be filed within 300 days.  His requests for reconsideration did not re-start the limitations period.


Even if his claim had been timely, the Court also found that he had failed to prove that he had a disability. Prior to the amendment of the ADA, the Court had made clear that “simply having a work restriction does not automatically render one disabled,  . . . .  nor does being unable to perform a discrete task or a specific job.”  After the ADA was amended, “an impairment that “substantially limits one major life activity need not limit other major life activities in order to be considered a disability.”

Even so, Congress did not modify the definition of the major life activity of working, and a plaintiff who alleges a work-related disability “is still required to show that her impairment limits her ability to ‘perform a class of jobs or broad range of jobs.’”   . . . . EEOC regulations explain that a plaintiff cannot claim a disability by simply “[d]emonstrating a substantial limitation in performing the unique aspects of a single specific job.”  29 C.F.R. § 1630, App. (2016).  That Booth’s neck injury and related work restrictions kept him from working in the material handling role does not resolve whether Booth is disabled under the ADA.  Rather than point to one job that he cannot perform, a plaintiff alleging a work-related disability must show that his condition precludes him from working in a class or broad range of jobs, “such as . . . assembly line jobs.”  Id.  Booth has not made that showing.  To the contrary, Booth concedes that he has worked without interruption on the assembly line since injuring his neck in 2004—and has continued to work there since this litigation began.  

The Court also rejected his timely failure to accommodate claim, which was based on the employer’s “pressure” to have his medical restrictions modified under threat of termination if he failed to do so.  

 However, the Court rejected this claim for the same reason as his refusal-to-transfer claim:  he could not show that he was disabled.   Moreover, he could not show that the employer failed to accommodate him because he continued to work uninterrupted even though the litigation. “Nor does Booth suggest that he misreported his symptoms or otherwise encouraged his doctor to modify the restrictions in order to preserve his job.  To the contrary, Booth testified that he does not disagree with his doctor’s revisions to his work restrictions.”


NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Self-Diagnosed ADA Claims

Last week, the Sixth Circuit Court of Appeals issued a decision confirming in writing an intuitive, but never explicit, aspect of the ADA:  That self-diagnosed medical conditions do not generally qualify as medical or mental impairments for purposes of proving the existence of a disability.   Neely v. Benchmark Family Services, No. 15-3550 (6^th Cir. 1-26-16).   It is hardly uncommon for an employee to complain about an undiagnosed medical condition and then later sue for failure to accommodate after an adverse employment action.   In this case, the plaintiff complained about his inability to sleep and fatigue, and sought medical treatment.   However, his specialist never made a diagnosis, speculated that his insomnia could be medically-related or due to poor life habits, and recommended further testing, which the plaintiff never obtained.   When he blamed his performance problems on his undiagnosed sleeping disorder, he was told to hurry up and take care of that.   When his performance did not improve, he was demoted and then later fired after his attitude deteriorated.    The Court found that the plaintiff could not prove that he had a disability because he had never been diagnosed with a medical or mental impairment.  Further, the Court rejected his “regarded as” claim because an employer’s knowledge that he had certain symptoms was not the same as regarding him as having a serious and non-transitory medical impairment and because the plaintiff admitted his problem did not affect his ability to work.  Finally, the Court rejected his retaliation claim on the grounds that simply discussing medical symptoms with an employer is not protected conduct when the plaintiff lacked a diagnosis, failed to ever request an accommodation and never filed an EEOC charge before being terminated.

According to the Court’s opinion, the plaintiff claimed that he was unable to sleep and sought medical treatment.  The specialist speculated that it could be sleep apnea, but also observed that he suffered from “poor sleep hygiene,” (i.e., went to bed only when he felt like it, ate at odd hours, etc.).  The specialist said that further tests would be necessary before he could make a diagnosis, but the plaintiff never pursued those tests.  In the meantime, the plaintiff self-medicated (i.e., caffeine and sleep supplements).  When he was repeatedly counseled about poor job performance and sleeping at work, he blamed it on a sleeping disorder and said that he was trying to treat it himself.  His supervisor told him to “try to hurry up with that.”    When the plaintiff’s performance failed to improve, he was verbally reprimanded and demoted.   He complained that it was unfair to hold his sleeping disorder against him (which caused the manager to roll his eyes).  When co-workers complained about his poor attitude in the week following his demotion, he was terminated, filed an EEOC Charge and ultimately commenced this lawsuit.

The Court found that the plaintiff could not prove that he suffered from a medical or mental impairment, as necessarily to establish the existence of a disability.  The fact that medical professionals made note of his claimed symptoms does not change the fact that he was never diagnosed with a sleep disorder. The plaintiff’s “bare assertions of sleep apnea, without any supporting medical evidence, cannot establish a “physical or mental impairment” within the meaning of the ADA.”  The Court rejected the plaintiff’s argument that his own experience should be sufficient evidence to establish a disability because the plaintiff’s “own experience” is relevant only to establishing whether the diagnosed impairment substantially limits a major life activity and not to whether the plaintiff suffers from an impairment.

Interestingly, the Court also concluded that even if the plaintiff actually suffered from sleep apnea and only got about 2-3 hours of sleep each night, that would still not constitute a disability because prior precedent indicates that poor sleeping and breathing are not substantially limiting or severe impairments.  The Court refused to relax those precedents in light of the 2008 amendments to the ADA:

Though the 2008 Amendments undoubtedly eased the burden required for plaintiffs to establish disability, we note that Congress expressly chose to retain the “substantially limits” modifier for “one or more major life activities.” See 42 U.S.C. § 12102(1)(A); ADA Amendments Act of 2008, PL 110–325, September 25, 2008, 122 Stat 3553. A lesser burden is a burden nonetheless, and one that [the plaintiff] has failed to carry. We agree with the district court that, “[w]hile a diagnosis might not be absolutely necessary [to establish a record of impairment], in this situation, some diagnosis must explain the duration or severity of the impairment.”  . . . We therefore hold that [the plaintiff’s] self-described symptoms to his physicians, without corroborating medical evidence or any diagnosis are insufficient to establish a substantial limitation on a major life activity.

The Court also rejected the plaintiff’s claim that he had a “record of impairment.”  He had no diagnosis and the recommendation for further testing by his sleeping specialist did not constitute a record of impairment.

The Court also rejected the plaintiff’s claim that he was “regarded as” having an impairment.  While the Court acknowledged that the 2008 ADAA had relaxed the “regarded as” definition from being regarded as having a substantially limiting impairment to simply having an impairment, the plaintiff still could not satisfy the lesser burden.  “[I]t is not enough that the employer is simply aware of a plaintiff’s symptoms; rather the plaintiff must show that the employer regarded the individual as “impaired” within the meaning of the ADA.”    In this case, the plaintiff undermined his own allegations when he admitted that his sleeping disorder did not affect his ability to work because the ADAA’s definition of impairment under the “regarded as” prong did not include minor and transitory conditions. “We agree with the district court that Neely paints an inconsistent picture by “both asserting that his employer was dismissive of his alleged disability and that he was so affected by it that his employer regarded him as disabled.”  That his employer was aware of the plaintiff’s self-diagnosed symptoms was insufficient evidence to show that it perceived him as suffering from a medical or mental impairment.   

Finally, we note that the “regarded as” prong “is intended to allow individuals to be judged according to their actual capacities, rather than through a scrim of ‘myths, fears, and stereotypes’ accruing around a perceived impairment.” Mahon v. Crowell, 295 F.3d 585, 592 (6th Cir. 2002). Benchmark’s comments about Neely’s purported sleep disability do not reflect the myths or stereotypes regarding disabilities that the ADA is designed to combat, nor do they suggest discrimination or bias arising from a perceived disability.

The Court also rejected the plaintiff’s retaliation claim because he never engaged in any protected activity before his demotion or termination.  The Court concluded that simply informing an employer about the possible existence of a medical impairment – without requesting a reasonable accommodation – is not – by itself – protected conduct:

The parties do not dispute that Neely never requested an accommodation nor filed a formal [EEOC] charge against his supervisor before he was terminated. Instead, Neely’s purported protected activity was “complaining to Hanrahan [his supervisor] that it was unfair to use his sleeping disorder against him.” Neely Br. at 24. Nonetheless, Neely asks us to extend Bryson to cover his circumstances—that is, permit an individual who is not disabled under the ADA, who never requested an accommodation, and who never filed a formal charge while employed to be deemed to have engaged in a “protected activity” simply for discussing his sleep issues with his employer. We decline to do so here.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: EAP Referral for Fitness for Duty is Not Evidence of Perceived Disability

Last week, the Sixth Circuit in Cincinnati affirmed the dismissal of a perceived disability and retaliation claim brought against an Ohio employer under the ADA and Ohio law.   Johnson v. University Hospitals Physician Services, No. 14-4026 (6^th Cir. 7-7-15).  In that case, the plaintiff was referred to EAP for a fitness evaluation after she was repeatedly found sleeping at her desk and admitted that her new medication made her drowsy.   After she requested and was recommended for medical leave, she failed to return to work when released by her medical provider and refused to provide a fitness for duty statement.  After being fired for refusing to perform a job duty, she sued that her fitness evaluation had violated the ADA.  However, the Court rejected the argument that perceiving an employee as impaired is “tantamount” to perceiving the employee as disabled since the impairment may not be substantially limiting even though it interferes with job performance.

According to the Court’s opinion, the plaintiff had concerns about the proper completion of forms being submitted to the Centers for Medicare and Medicaid (CMS).   Concerned that she was participating in fraud, she contacted the employer’s compliance hotline.  A compliance officer investigated her concerns and assured her that she was properly completing the forms in compliance with CMS protocols.   The plaintiff conducted her own research and contacted the CMS subcontractor, an employee of which reinforced her concerns.  She forwarded these emails to her supervisors and was again contacted by the compliance officer who said that the subcontractor supervisors agreed that the employer’s practice was appropriate.  

Meanwhile, the plaintiff was occasionally napping at her desk and reported that she would be late one day because her new medication was making her drowsy.  After a number of sleeping incidents (none of which violated employer policy), she was referred to EAP for a fitness for duty evaluation based on her impaired functioning.  She requested FMLA and STD, was referred to a psychiatrist and time off work by EAP and released to return to work by her new psychiatrist.  In the meantime, the employer requested a new FMLA certification.  The employee did provide the new certification or return to work.

The employer ordered her to return to work by October 1 or be fired.  The plaintiff responded by filing a Charge of Discrimination and providing a list of conditions about her return to work, including how the CMS forms would be completed.  When she refused to complete the forms as instructed, she was terminated for refusing to perform her duties.  This litigation ensued focused only on the fitness for duty evaluation by EAP and the delay in reinstating her to work.  Surprisingly, she did not bring a whistleblower claim or wrongful termination claim.

The Court applied a “but-for” causation standard under the ADA and Ohio law.  It did not apply the ADAA definition of perceived disability.  Instead, it found that she had to prove that the employer regarded her “actual, nonlimiting impairment substantially limits one or more major life activities.”  In any event, it rejected her argument that her referral for an EAP evaluation was evidence of that the employer perceived her as disabled under the ADA: 

“[A] defendant employer’s perception that health problems are adversely affecting an employee’s job performance is not tantamount to regarding that employee as disabled.”  . . . An employer’s request that an employee undergo a medical exam “may signal that an employee’s job performance is suffering, but that cannot itself prove a perception of a disability because it [alone] does not prove that the employer perceives the employee to have an impairment that  substantially limits one or more of the employee’s major life activities.” . . . .. “Deteriorating [employee] performance may be linked to motivation or other reasons unrelated to disability.” . . . (citations omitted).

Defendant stated on the referral form that “impaired functioning” was the basis for [her] referral. The report of the doctor who examined [her] stated that she was referred for evaluation because she was “falling asleep at work,” and generally had a “difficult” relationship with her manager. These reasons for referral are directly related to [her] ability to do her job.

In addition, the plaintiff failed to show that the employer was at fault for her delay in returning to work.  The plaintiff refused to cooperate with providing either medical certifications or a fitness for duty from her own psychiatrist  and was still invited back to work.   While there may have been a miscommunication about her return to work, the delay was not attributable to any perception of a disability.  Moreover, her submission of a list of conditions to her return reflected the fact that she was in no hurry to return to work.  Finally, the employer’s alleged irritation with her concerns about the CMS form were not attributable to any perception of disability. 

The retaliation claim was easily dismissed because the plaintiff could not show that the employer’s reason for her termination – her refusal to complete the CMS forms as instructed – was merely a disguise for unlawful retaliation.  Indeed, she admitted that she would probably still be employed if she had completed the form as instructed. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court of Appeals Reverses Directed Verdict on Perceived Disability

Late last month – just a few days after the Franklin County Court of Appeals rejected a perceived disability claim – the Ohio Court for Harrison County reversed an employer’s directed verdict on a perceived disability claim and found a reasonable jury could conclude that the employer’s perception might have motivated the employee’s termination, but rejected the employee’s argument that the employer’s offered reasonable accommodation could – by itself -- constitute evidence that it perceived him as disabled.  Roghelia v. Hopedale Mining, L.L.C., 2014-Ohio-2935.  The Court found that the trial court improperly elevated the plaintiff’s burden of proof in a perceived disability case by requiring him to show that the employer perceived his impairment – an amputated thumb -- to be substantially limiting of a major life activity.  Moreover, an email sent by a manager about “be[ing] careful”  with “his background injury wise” created a question of fact as to whether the employer was motivated by the impairment or was trying to conscientiously follow the law in terminating the employee for poor attendance.  Finally, the Court concluded that the jury was entitled to decide whether the attendance issue was a pretext for unlawful discrimination.

According to the Court’s opinion, the employee was terminated for poor attendance even though he had submitted a medical excuse prior to taking the time off.  He did not, however, call in to speak with his supervisor before taking off work and his supervisor had decided to assign him to light duty after receiving the medical statement.  He had prior attendance problems.  Once, he submitted a medical statement, which gave no medical reason for his absence, and got married during his two week absence.  He had been placed on probation for poor attendance before his termination. 

Under the Ohio Revised Code and the current ADAA, “a plaintiff must show that the employer regarded her as having a mental or physical impairment, but without regard to whether the employer regarded her as substantially limited in her daily life activities as a result.” 

Shortly after the plaintiff lost his thumb, the employer transferred the employee to a position which would not cause as much pain in his injured hand.  Nonetheless, it believed that he could perform all of his job duties.  The Court noted that Ohio Courts have refused to consider reasonable accommodations as evidence of a perceived disability.   

To find otherwise would mean that any time any sort of work place accommodation is made for the employee this automatically results in a conclusion that is perceived as disabled for purposes of disability discrimination. Therefore, merely showing that an employee was accommodated is not sufficient to prove that the employer regarded the employee as disabled.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

DOL: New Administrator’s Interpretation of FMLA and Leave for Adult Children

On Monday, the Wage and Hour Division (WHD) of Department of Labor issued its first Administrator's Interpretation of the FMLA since June 2010. Administrator's Interpretation No: 2013-1 seeks to clarify the FMLA definition of adult "son or daughter" who is incapable of self-care because of a mental or physical disability. Those in Central Ohio may recall that the Sixth Circuit addressed this issue in Novak v. MetroHealth Medical Center, 503 F.3d 572 (6th Cir. 9/28/07). However, since the time of that decision, Congress amended the ADA to expand the definition of "disability." Not only have the number of "major life activities" expanded, but "the definition of 'substantially limited' does not require that the impairment prevent, or severely or significantly restrict, performing a major life activity" and precludes consideration of most mitigating measures (such as medication). Nonetheless, the adult child must still also be incapable of self care before the parent will be entitled to FMLA leave.

An issue left unclarified, however, is being able to reliably determine within days of an FMLA request whether an adult child's temporary injury or illness will qualify as a disability. Another issue "clarified" by the WHD is that the age of the son or daughter at the onset of a disability is irrelevant to the determination. Finally, the WHD clarifies that parents of servicemembers who have exhausted their 26 weeks of leave to care for an adult son or daughter are still entitled to another 12 weeks of FMLA leave each new leave year to care for a qualified adult child without regard to the prior use of servicemember leave.

Disability/Incapable of Self Care

As explained by the WHD:

The FMLA regulations define "incapable of self-care because of mental or physical disability" as when an adult son or daughter "requires active assistance or supervision to provide daily self-care in three or more of the 'activities of daily living' (ADLs) or 'instrumental activities of daily living' (IADLs)." Id. at § 825.122(c)(1). A parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter:

(1) has a disability as defined by the ADA;

(2) is incapable of self-care due to that disability;

(3) has a serious health condition; and

(4) is in need of care due to the serious health condition

. . . .

[P]ursuant to the ADAAA, an impairment that is "episodic or in remission" is a disability if, when active, the impairment would substantially limit a major life activity.  . . . There is also no minimum duration required for an impairment to be a disability under 42 U.S.C. § 12102(1)(A). The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of the ADA.  

Even if a child has a disability, an adult son or daughter must also be found incapable of self-care, which

requires active assistance or supervision to provide daily self-care in three or more of the 'activities of daily living' (ADLs) or'instrumental activities of daily living' (IADLs)." 29 C.F.R. § 825.122(c)(1). Activities of daily living include "adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc." Id. The list of ADLs and IADLs in the regulations is not exhaustive, and additional activities such as assistance with medication management, should also be considered in determining whether an adult son or daughter is incapable of self-care because of a disability. The determination of whether an adult son or daughter is incapable of self-care due to a disability under the FMLA is a fact-specific determination that must be made based on the individual's condition at the time of the requested leave. Such a determination must focus on whether the individual currently needs active assistance or supervision in performing three or more ADLs or IADLs.  (emphasis added).

In addition, even if the disabled adult child is incapable of self care, the parent must be needed to care for the child before the parent qualifies for FMLA leave. This includes situations where:

[t]he parent [is] needed to care for his or her adult son or daughter if, for example, because of the serious health condition the adult child is "unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor." Id. at § 825.124(a). The term "needed to care" also includes providing psychological comfort and reassurance that would be beneficial to a son or daughter with a serious health condition who is receiving inpatient or home care. Id.

The WHD provides some examples of how it views various situations:

Example 1: An employee's 37-year old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of major life activities (i.e., walking standing, sitting, etc.). As a result of this injury, the daughter is hospitalized for two weeks and under the ongoing care of a health care provider. Although she is expected to recover, she will be substantially limited in walking for six months. If she needs assistance in three or more activities of daily living such as bathing, dressing, and maintaining a residence, she will qualify as an adult "daughter"under the FMLA as she is incapable of self-care because of a disability. The daughter's shattered pelvis would also be a serious health condition under the FMLA and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability. (emphasis added).

Example 2: An employee's 25-year old son has diabetes but lives independently and does not need assistance with any ADLs or IADLs. Although the young man's diabetes qualifies as a disability under the ADA because it substantially limits a major life activity (i.e., endocrine function), he will not be considered an adult "son" for purposes of the FMLA because he is capable of providing daily self-care without assistance or supervision. Therefore, if the son is admitted to a hospital overnight for observation due to a skiing accident that does not render him disabled, his parent will not be entitled to take FMLA leave to care for him because he is over the age of 18 and not incapable of self-care due to a mental or physical disability.

If the son later becomes unable to walk and is also unable to care for his own hygiene, dress himself, and bathe due to complications of his diabetes, he will be considered an adult "son" as he is incapable of self-care due to a disability. The son's diabetes will be both a disability under the ADA and a chronic serious health condition under the FMLA because his condition requires continuing treatment by a doctor (e.g., regular kidney dialysis appointments). If his parent is needed to care for him, his parent may therefore take FMLA-protected leave to do so.

Servicemember Leave/Miscellaneous

Under the military caregiver provision, a parent of a covered servicemember who sustained a serious injury or illness is entitled to up to 26 workweeks of FMLA leave in a single 12-month period if all other requirements are met. The servicemember's injury, however, may have an impact that lasts beyond the single 12-month period covered by the military caregiver leave entitlement. Thus, this interpretation clarifies that the servicemember's parent can take FMLA leave to care for a son or daughter in subsequent years due to the adult child's serious health condition, as long as all other FMLA requirements are met.

Example: A father has exhausted his 26 workweeks of military caregiver leave to care for his 20-year old son, a returning servicemember who sustained extensive burn injuries to his arms and torso. In the next FMLA leave year, the father seeks leave from his employer to care for his son as he undergoes and recovers from additional surgeries and skin graft procedures. The father will be entitled to take up to 12 workweeks of FMLA-protected leave to care for his son because his son's burn injuries that substantially limit his ability to perform manual tasks constitute a disability under the ADA, the son is incapable of self-care due to a disability (i.e., he needs active assistance or supervision in bathing, dressing, and eating), the son's burn injuries are a serious health condition because they require continuing treatment by a health care provider, and the father is "needed to care" for the son.
 

One last point:

The FMLA does not require that a biological or legal relationship exist between the employee and the child. See 29 C.F.R. § 825.122(c)(3). The FMLA definition of "son or daughter" therefore includes a child of a person standing in loco parentis—those with day-to-day responsibilities to care for or financially support a child.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court of Appeals Rejects "Regarded As" Disabled Claim Supported Only by Knowledge of Single Hospitalization

Last week, the Cuyahoga County Court of Appeals affirmed summary judgment in favor of an employer on the plaintiff’s claims that she had been transferred and then terminated because the employer perceived her as an alcoholic.  Field v. MedLab Ohio, Inc., 2012-Ohio-5068.  The Court agreed that the plaintiff had been transferred on account of poor performance – particularly poor communication and organizational skills – prior to the employer learning that she had any medical problems.  

 According to the Court’s opinion, there were several examples of the plaintiff’s failure to timely return calls or visit clients who indicated that they would take their business elsewhere.   Indeed, her position had been offered to and accepted by another employee earlier in the day when the plaintiff was hospitalized.  Further, she had never indicated to anyone that she had a problem with alcohol.  At worse, she had indicated later on the day that her position was given to a co-worker that she was having a “nervous breakdown.”  When she returned to work, the employer informed her that she was being transferred to a smaller and less stressful sales territory without any change in salary.  She admitted that she had never mentioned a problem with alcohol to her employer and had no facts to show any unlawful discrimination.  Instead, she brought the lawsuit because she subjectively felt that she was being treated differently after her hospitalization.  She was fired after losing yet another client.  The Court concluded that “knowledge of a single hospitalization is not knowledge of a disability  . . . . General knowledge about an employee’s condition and medical treatment, without more, is not enough for a “regarded as” claim to survive summary judgment.”

Interestingly, while the Court indicates that it relied in part on the federal ADA (and quotes the ADAA) , it also cited to pre-ADAA law to reject some of the plaintiff’s allegations.  For instance, the Court cited to the newish ADAA definition of being “regarded as” disabled and only requiring that the employee be regarded as having a physical impairment regardless of whether that impairment is perceived to also limit a major life activity. ¶10.  Yet, the court also cited to the Supreme Court’s Sutton decision as requiring that “the employer’s negative perception must encompass a broad class of jobs.” ¶11.  It also rejected the plaintiff’s argument that she was perceived as unable to handle a broad range of jobs. ¶30.   Moreover, the court rejected the plaintiff’s argument that her inability to handle stress was a mental impairment. ¶27.

Stress, however, is not expressly identified as a physical or mental impairment under R.C. 4112.01. Moreover, this isolated statement does not create a genuine issue of material fact that MedLab regarded her as disabled because of a “mental disorder related to alcoholism.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Affirms Summary Judgment Dismissal of ADA Claims Based on Direct Threat

On Friday, the federal Sixth Circuit Court of Appeals affirmed a summary judgment in favor of a manufacturing employer based on its defense that the forklift operator’s disability constituted a direct threat to himself and others. Wurzel v. Whirlpool Corp. No. 10-3629 (6th Cir. 4-27-12). “ In particular, the record establishes that [the employer]’s determination that [the operator] posed a direct threat was based on a reasonable medical judgment, which relied on the most current medical knowledge and best available objective evidence and reflected an individualized assessment of [his] abilities.” In short, the Court determined that the plaintiff was not qualified for his position because he posed a direct threat. This conclusion was based almost entirely on the extensive and individualized assessment conducted by the company physician. However, the Court refused to decide which party bore the burden of proving the direct threat/qualification standard in this case because it decided that the evidence was so clear that it need not do so.

Background

According to the Court’s opinion, numerous vehicles are used in the plaintiff’s workplace, including tow motors (i.e., forklifts driven by the plaintiff) weighing 10,000 pounds. Tow motors and pedestrians share space; tow motor lanes and pedestrian lanes are separated by painted lines only. The plaintiff was diagnosed in November 2007 with Prinzmetal angina, which causes unpredictable spasms in the coronary arteries. He was directed to take nitroglycerin pills when he experienced a spasm. Both the spasm and the pills could cause dizziness, lightheadedness and fatigue. After he began to experience these symptoms in March 2008 that repeatedly required him to be relieved from work, he was placed by the company doctor on restricted duty and prevented from driving a forklift. He continued to experience severe symptoms, would become incapacitated and sometimes had to be taken home. Without being told about these incidents or his dangerous work environment, his treating physicians continued to release him to work without restrictions and contended that he was not at any greater risk of incapacitation than anyone else with angina. The company doctor spoke with the treating physician and returned him to restricted duty with the caveat that he could return to his forklift duties if he remained spasm free for six months.

The plaintiff then bid on and obtained a position in the tooling department that did not involve driving a forklift. It required him to rotate among three positions every 30 minutes. After he experienced another spasm that incapacitated him and required him to be taken home (a few days after he had to be taken to the emergency room from work because of another spasm), the company doctor ordered an independent medical exam. After the plaintiff denied having any unusual incidents or spasms, the IME doctor returned him to work without restrictions in December 2008. In late January and early February 2009, the plaintiff had to be relieved from work on three separate occasions in a two week period. Nonetheless, he continued to tell his treating physician that he had no unusual incidents and that his symptoms were under control. When he was released to return to work without restrictions, the company doctor again spoke with the treating physician about the plaintiff’s work history and the treating physician continued to insist that he should be returned to work without restrictions.

Because the company physician did not believe that the treating physicians were accurately aware of the dangers in the work environment, he restricted the plaintiff from working around machinery, working at heights, and driving company vehicles. This essentially put the plaintiff on mandatory sick leave. The Company physician also sought another opinion from the IME physician, explaining his difference of opinion with the treating physician. The IME physician agreed that the plaintiff required close observation while working and another treating physician, and, barring that, should be kept off work for his own safety. The plaintiff then filed suit in federal court.

Subsequently, the IME physician reviewed the records of the treating physician, which confirmed that he was unaware of the frequency or severity of the plaintiff’s spasms. The IME physician recommended that the plaintiff be kept off work until he accurately conveyed this information to his treating physician. In June 2009, the IME physician again confirmed that in his opinion, the plaintiff “should not work alone near areas with an assembly line or moving machinery” and “should avoid working close to moving objects or moving machinery.” The plaintiff was informed that he would need to obtain a new position that met his medical restrictions unless he could show that he had been spasm free for six months. Because he had exhausted his paid medical leave, he was required to take unpaid medical leave. In March 2010, he returned to work without restrictions after he claimed to have been spasm free for six months.

Legal Analysis

The Court refused to decide whether the plaintiff was disabled or regarded as disabled under the ADA or ADAA. The Court did note, however, that the plaintiff could not prevail on a failure-to-accommodate claim because he would not be entitled to any reasonable accommodation in a “regarded as” disabled discrimination claim and because he never sought any reasonable accommodation of his actual disability. “Even assuming in [his] favor that he was disabled or regarded as disabled, [the plaintiff] cannot prevail under either version of the statute where the record establishes as a matter of law that [the employer]’s determination that [he] posed a direct threat was based on a reasonable medical judgment, which relied on the most current medical knowledge and best available objective evidence and reflected an individualized assessment of [his] abilities.”

According to the Court, there are four factors to be considered in a direct-threat analysis:

(i) the duration of the risk,

(ii) the nature and severity of the potential harm,

(iii) the likelihood that the potential harm will occur, and

(iv) the imminence of the potential harm.

29 C.F.R. § 1620.2(r).

“With regard to the risk presented, “[a]n employer . . . is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e. high probability, of substantial harm; a speculative or remote risk is insufficient. . . . In addition, the risk assessment must be based on “medical or other objective evidence.” Bragdon v. Abbott, 524 U.S. 624, 649 (1998).

In this case, the Court found that the duration of the risk was life-long and that until the plaintiff was spasm free for six months, the employer could proceed with that assumption. With regard to the nature and severity of the potential harm, the plaintiff could suffer “a spasm while driving a tow motor or working alone in proximity to moving machinery or at a height from which a fall could cause injury,” and “the consequences for his own well-being and others can hardly be disputed.”

As described below, the Court concluded that the employer was reasonable under the circumstances in deferring to the opinions of its physician and the IME physician even though they differed from the opinions of the plaintiff’s treating physicians. This is particularly true when it was evident that the plaintiff had not been supplying them with complete or accurate information about the frequency or severity of his symptoms. The treating physicians did not know how often the plaintiff had visited employee health or been taken home because the plaintiff never told them.

As for the third and fourth factors, the Court rejected the argument that the likelihood and imminence were remote (and had never taken place in this case because the plaintiff could always feel a spasm coming on in time to stop working). The Court found the plaintiff’s testimony to be contradictory and confusing about his ability to sense an oncoming attack, and thus, insufficient to defeat summary judgment (assuming that he bore the burden of proof).

[I]t is true that some courts have noted the fact that an employee has an injury-free record, or a safe driving history, in concluding that the employee has established a genuine issue of material fact on the direct-threat question. . . . However, courts evaluating individuals whose conditions might cause them to be incapacitated tend to focus on the risk related to the workplace. . . . As someone who worked close to dangerous automatic machinery and, at times, out of the sight of other employees who might be able to assist in an emergency, Wurzel’s job environment certainly falls in the potentially dangerous category. When one also considers the facts that Wurzel had once previously been found on the worksite doubled over and close to passing out, and that numerous times he had required the assistance of a fellow employee to get him to the EHC in a medical emergency, the factors concerning likelihood and imminence of harm are unmistakably met.

The Circuit rejected the arguments raised by the plaintiff and the EEOC seeking to discredit the conclusions of the employer’s physician:

As an initial matter, Dr. Marshall – the individual who gave Whirlpool its information about the risks Wurzel’s condition posed – engaged in a sufficient process. He was familiar with Wurzel’s job duties and knew that they included (initially) operating a tow motor, and (later) working in a position where he had to be in close proximity to moving machinery and an automatic conveyor belt, and where one essential rotation entailed working out of the sight of others. Dr. Marshall obtained much individualized information about Wurzel’s medical condition. He saw Wurzel himself, reviewed the medical records from the plant’s EHC, obtained the medical opinions of Wurzel’s treating cardiologists, Dr. Issa and Dr. Stockton, and, in light of the differences of opinion between medical professionals, sought out the opinion of an independent medical examiner. As Dr. Marshall was the plant physician, he had access to updated information as Wurzel’s condition changed, meaning his medical knowledge of Wurzel’s condition was current. In addition, he followed up with Wurzel’s other physicians in order to make them aware of his better understanding of Wurzel’s job environment and changes in Wurzel’s condition. Cf. Hutton, 273 F.3d at 891-94 (“individualized assessment of each factor” had occurred in case where company had the input of several physicians who had examined plaintiff and information about the plant atmosphere and plaintiff’s job duties). Further, the result was reasonably reached. Dr. Marshall adopted the ultimate recommendation of independent medical examiner Dr. Biswas that Wurzel should “not work alone near areas with an assembly line or moving machinery” and should avoid working close to moving objects or moving machinery. Biswas Letter of 6/17/2009 (R. 43-1 at 15-16). These restrictions were reasonably supported by Wurzel’s extensive history of spasms in the workplace, which entails at least eleven instances, at least five of which required visiting the plant emergency room, and the majority of which required Wurzel to leave work and go home. Wurzel’s spasm history also includes at least one incident where he was found by another employee doubled over on a bench, “ready to pass out,” another incident where he required an in-house ambulance and stretcher to bring him to the plant’s EHC, and several others where he needed an escort to get to the EHC. In addition, Wurzel’s own admission that he was at times dizzy and fatigued in connection with these spasms, and that he could not predict when one would occur or how severe it would be lends support to the reasonability of the restrictions. These restrictions were then evaluated in relation to Wurzel’s specific job duties in the paint department. See Restriction Review (R. 41-1 at 19). Whirlpool determined that Wurzel could not do the job because one of the rotations required him to work alone and outside the presence of other employees and all of the positions involved working close to a “moving overhead conveyor.” Id. Cf. Hutton, 273 F.3d at 891-94 (company closely examined plaintiff’s medical restrictions and specific job duties before concluding that he could not fill any position).

Therefore, the Court found

• Assuming the employer had the burden of proof, no reasonable juror could find that Whirlpool’s determination that Wurzel posed a direct threat to his own safety and that of others in the plant was not based on a reasonable medical judgment, which relied on the most current medical knowledge and best available objective evidence and reflected an individualized assessment of Wurzel’s abilities.

• Assuming the plaintiff bore the burden of poof, no reasonable jury could find that there was evidence of a reasonably based medical judgment supporting the view that Wurzel did not pose a direct threat.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Proposes New Regulations Under ADAA.

Last week, the EEOC proposed new ADA regulations to implement the Americans With Disabilities Amendment Act (ADAA) which took affect on January 1, 2009. The new regulations were published this morning in the Federal Register. The EEOC published a Q&A brochure about the new regulations on its website last week. Among other things, the new regulations indicate the existence of per se disabilities and per se non-disabilities.

Impairments. The proposed regulations indicate that certain “impairments will consistently meet the definition of disability,” and assessment of the existence of a disability can be conducted quickly and easily in these situations, such as when the individual has cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis, major depression, PTSD, etc. By way of comparison, other impairments may be disabling for some and not for others. Still others will typically not be considered disabilities, such as the common cold, seasonal or common flue, sprains, non-chronic gastrointestinal disorders, etc.

Major Life Activities. As discussed in a prior summary at Congress Passes ADA Amendments Act to Abrogate Pro-Employer Supreme Court Decisions, the ADAA broadened the definition of “major life activity” and provided that disability should be broadly construed in favor of coverage. With that in mind, the new proposed regulations specify that major life activities include “concentrating, thinking, communicating, interacting with others”, etc. and that an individual is substantially limited in a major life activity if that person is limited in any one of those activities, regardless of whether the individual is substantially limited in the ability to work or limited “in the ability to perform activities of central importance to daily life.” Rather, “an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.” Moreover, “[t]he comparison of an individual’s limitation to the ability of most people in the general population often may be made using a common sense standard, without resorting to scientific or medical evidence.”

That being said, the EEOC still proposes a regulation on what it means to be substantially limited in the major life activity of working. An impairment will be considered to substantially limit the ability to work “if it substantially limits an individual’s ability to perform, or to meet the qualifications for, the type of work at issue” which “includes the job the individual has the individual has been performing, or for which the individual is applying, and jobs with similar qualifications or job-related requirements which the individual would be substantially limited in performing because of the impairment.”

While there is a “transitory and minor” exception to “substantially working” for impairments which are not expected to last more than six months, this exception “does not establish a durational minimum for the definition of ‘disability’” for an actual disability or record of disability. “An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.” Notably, “the focus is on how a major life activity is substantially limited, not on what an individual can do in spite of an impairment.” In addition, “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Examples may include . . . asthma, . . . psychiatric disabilities, such as depression,” etc.

Mitigating Measures. The ADAA removed the “mitigating measures” doctrine from the consideration of what constitutes a covered disability, except with respect to the use of contacts or eye glasses. As stated in the proposed regulations, an individual who would be substantially limited in a major life activity without the use of medication or other mitigating measure would be considered to be disabled. By way of example, “[a]n individual who is taking a psychiatric medication for depression, . . . has a disability if there is evidence that the mental impairment, . . if left untreated, would substantially limit a major life activity.”

Record of Impairment. An individual has a covered record of disability if the individual has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” For example, “[a]n employee who in the past was misdiagnosed with bipolar disorder and hospitalized as the result of a temporary reaction to medication she was taking has a record of a substantially limiting impairment, even though she did not actually have bipolar disorder.”

Regarded As Disabled. An individuals will have a covered disability

if the individual is subjected to an action prohibited by this part, including . .denial of any other term, condition, or privilege of employment based on an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. Proof that the individual was subjected to a prohibited employment action e.g., excluded from one job, because of an impairment other than an impairment that is transitory and minor . . . ) is sufficient to establish coverage. . . . Evidence that the employer believed the individual was substantially limited in any major life activity is not required.

(emphasis added).

“[C]overage can be established whether or not the employer was motivated by myths, fears, or stereotypes. . . an individual is regarded as disabled when an [employer] takes some action prohibited by the ADA . . . because of an actual or perceived impairment” or symptoms or “mitigating measures, such as medication that an individual uses because of an impairment.”

Proof that the individual was subjected to a prohibited employment action . . . is sufficient to establish coverage under the ‘regarded as’ definition . . . Evidence that the employer believed the individual was substantially limited in any major life activity is not required.

Employers are not required to provide reasonable accommodations to employees who are merely regarded as disabled, but are to employees who are actually disabled or have a record of disability.

Defenses. Employers may still defend accusations of disability discrimination by showing that the employee did not establish that he or she was otherwise qualified for the position based on a “qualification standard” that is “job related and consistent with business necessity,” or that she or she poses “a direct threat to health or safety based on the best available objective medical evidence and an individualized assessment of the risk if any, posed.” Employers may also argue that the impairment was both transitory and minor.

The EEOC will accept written comments on the proposed rules until November 23, 2009.

Insomniacs can read the proposed regulations at http://edocket.access.gpo.gov/2009/pdf/E9-22840.pdf and the EEOC’s Questions and Answer brochure at http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Congress Passes ADA Amendments Act to Abrogate Pro-Employer Supreme Court Decisions.

This week, Congress reached an agreement on amending the Americans With Disabilities Act when both the House and Senate passed the ADA Amendments Act (ADAAA), which President Bush is expected to sign. The ADAAA becomes effective on January 1, 2009 and the EEOC has been tasked with drafting binding regulations interpreting and implementing the new provisions. The ADAAA is intended to reverse many pro-employer decisions by the Supreme Court (including Sutton v. United Air Lines and Toyota Manufacturing v. Williams) which some felt improperly narrowed the reach of the ADA. Among other things, the ADAAA changes existing law as follows:

1) Broadening the statutory definition of “major life activity” to include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working” and to include “the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

2) Specifically requiring the definition of disability to be construed broadly. “The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act” and an “impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

3) The mitigation measures doctrine has been abrogated. Except for ordinary eyeglasses and contact lenses, a “determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as (I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications.” This means that the ADA will now cover individuals with controlled chronic conditions, such as diabetes, and asthma, etc.

4) An individual can be regarded as having a disability if he or she proves only that s/he “has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment” regardless of whether “the impairment limits or is perceived to limit a major life activity.” In other words, the individual need only to be regarded as impaired to be regarded as disabled even though to actually be disabled, s/he would have to be substantially limited by the impairment. However, a person will not be treated as regarded as disabled if the impairment is “transitory and minor” (i.e., “an impairment with an actual or expected duration of 6 months or less.”). In other words, having a broken arm would not convert the person to disabled because the impairment is transitory.

5) Employers “need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual” who is only incorrectly regarded as disabled. In other words, only those who are actually disabled (rather than merely regarded as disabled) are entitled to reasonable accommodations.

6) Covered entities “shall not use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.”

7) Reverse discrimination claims are prohibited. “Nothing in this Act shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability.”

Employers can take some comfort that earlier provisions of the proposed ADAAA did not survive the Senate version, including versions that would have widened the definition of “disability” to include any mental or physical impairment (like the laws of some states, like Connecticut), a requirement to put the burden of proof on employers, and a per se list of disabilities.

Insomniacs can read the full ADAAA at http://thomas.loc.gov/cgi-bin/query/D?c110:3:./temp/~c110p47TJQ::

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.