In yesterday’s Advisor, panelists at BLR’s Advanced Employment Issues Symposium (AEIS) in Nashville warned of newly aggressive moves by the NLRB and unions; today, panelists take on ADA for 2012, plus an introduction to the all=HR-in-one website, HR.BLR.com.
Although the new regs issued in March 2011 do cover a lot of ground with regard to what is a disability, basically, “They want you to skip the step of determining whether there’s a disability,” says Al Vreeland, AEIS panelist and shareholder in Lehr Middlebrooks & Vreeland P.C., in Birmingham, Alabama.
The other panelists included Susan Fentin, partner at Skoler, Abbott & Presser, P.C. in Springfield, Massachusetts, Charles Plumb, shareholder at McAfee& Taft in Tulsa, Oklahoma. (All panelists are members of the Employers Counsel Network.)
ADAAA: Good News and Bad News
The ADAAA has vastly expanded the number of employees who will be able to claim that they are disabled, says Fentin. The goal of the ADAAA was to give employers “predictable, consistent, and workable standards” to determine whether an individual is “substantially limited.” The regulation notes that:
- Substantially limited means less than severely restricted
- Not every impairment will be a disability
- No mitigating measures may be considered (for example, a person with diabetes that is fully controlled would still have a disability)
- An impairment that is episodic (like asthma) can be a disability.
No Extensive analysis
The regulation says that determination of a disability should not require extensive analysis. “Don’t spend a lot of time on this,” says Fentin.
The new regulation does not provide a list of impairments, but does offer a long list of body systems that could be affected by impairment. For example, Fentin says, it lists the reproductive system, so fertility treatments might qualify.
There’s also a long list of major life activities, including concentrating, communicating, and interacting with others, In addition, there’s a list of bodily functions. The “condition, manner, and duration” of an impairment is still relevant in “certain cases,” but that’s going to be very few, Fentin says. For example, a broken leg would not normally be considered, but there’s always the possibility of infection or other complications.
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The bottom line seems to be that EEOC wants employers to focus on the accommodation piece, not the “is-it-a-disability” piece.
Regarded As Cases Easier to Bring
Regarded as claims (“You took action against me because you perceived that I had a disability) will be easier to plead and prove under the new regulation, says Fentin. And the only defense is that you didn’t know or suspect. (“Transitory or minor” is a defense but only if it is an objectively reasonable belief, Fentin adds.)
Reasonable accommodations and the ADA—never easy, but certainly not your only challenge. In HR, if it’s not one thing, it’s another. Like FMLA intermittent leave, overtime hassles, ADA accommodation, and then on top of that whatever the agencies and courts throw in your way.
You need a go-to resource, and our editors recommend the “everything-HR-in-one website,” HR.BLR.com. As an example of what you will find, here are some policy recommendations concerning e-mail, excerpted from a sample policy on the website:
Privacy. The director of information services can override any individual password and thus has access to all e-mail messages in order to ensure compliance with company policy. This means that employees do not have an expectation of privacy in their company e-mail or any other information stored or accessed on company computers.
E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.
Solicitation. In line with our general non-solicitation policy, e-mail must not be used to solicit for outside business ventures, personal parties, social meetings, charities, membership in any organization, political causes, religious causes, or other matters not connected to the company’s business.
We should point out that this is just one of hundreds of sample policies on the site. (You’ll also find analysis of laws and issues, job descriptions, and complete training materials for hundreds of HR topics.)
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My understanding is that the ADAAA and the final regulations actually state that the focus in ADA cases should be on whether the employers have complied with their obligations and whether discrimination has occurred, not whether the claimant’s impairment substantially limits an MLA.