moffatt thomas society for human resource management september 30, 2011 annual conference managing...

Moffatt Thomas

Society for Human Resource ManagementSeptember 30, 2011Annual Conference

MANAGING WORKPLACE PERFORMANCE IN

COMPLIANCE WITH THE FMLA AND ADAAA

Patricia M. Olsson

Moffatt Thomas

The EEOC’s Final ADAAA Regulations

The Final Regulations

Implement Title I (Employment) of ADAAA

Published March 25, 2011 Effective May 24, 2011 Found at 29 C.F.R. Part 1630 Include changes to the Interpretive

Guidance (Appendix)

The Three Definitions of Disability

A physical or mental impairment that substantially limits one or more of the major life activities of such individual (the “actual disability” prong);

A record of such an impairment (the “record of” prong); or

Being regarded as having such an impairment (the “regarded as” prong).

The Purpose of the ADAAA

The primary purpose of the ADAAA was to make it easier for people with disabilities to obtain protection under the ADA.

29 C.F.R. § 1630.1(c)(4)

Definition of Physical Impairment Is Little Changed

Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as:

29 C.F.R. § 1630.2(h)(1)

neurological

respiratory (including speech organs)

reproductive

immune (new)

lymphatic

musculoskeletal

digestive

circulatory (new)

skin

special sense organs

cardiovascular

genitourinary

hemic

endocrine

Definition of Mental Impairment Is Little Changed

Any mental or psychological disorder, such as: an intellectual disability (formerly termed

“mental retardation”) organic brain syndrome emotional or mental illness specific learning disabilities

29 C.F.R. § 1630.2(h)(2)

Major Life Activities

The prior reg’s non-exhaustive list of MLAs included caring for oneself, performing manual tasks, seeing, hearing, walking, speaking, breathing, learning, and working.

The new reg adds eating, sleeping, standing, sitting, reaching, lifting, bending, reading, concentrating, thinking communication, and interacting with others to the non-exhaustive list of MLAs.

29 C.F.R. § 1630.2(i)(1)(i)

Major Bodily Functions as MLAs

ADAAA included the operation of major bodily functions as MLAs and gave as examples: functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The final regs add other examples: special sense organs, skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal functions

The operation of a major bodily function includes the operation of an individual organ within a body system.

29 C.F.R. § 1630.2(i)(1)(ii)

Rules for Determining Whether Other Activities Are MLAs

In determining other examples of major life activities, the term “major” shall not be interpreted strictly to create a demanding standard for disability.

Whether an activity is a “major life activity” is not determined by reference to whether it is of “central importance to daily life.”

29 C.F.R. § 1630.2(i)(2)

“Substantially Limits” Is Undefined

The final regs do not define the term “substantially limits” because a definition would cause greater focus on the disability issue.

The final regs adopt nine rules of construction to be used in determining whether an impairment “substantially limits” a MLA.

Congress passed these rules to make it easier to establish an actual disability.

29 C.F.R. § 1630.2(j)(1)(i)-(ix)

Rule of Construction No. 1: Not a Demanding Standard

The term “substantially limits” shall be construed broadly in favor of expansive coverage and is not meant to be a demanding standard.

29 C.F.R. § 1630.2(j)(1)(i)

Rule of Construction No. 2: Significant Restriction Not

Required An impairment is a disability if it substantially

limits the ability of an individual to perform a MLA as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. However, not every impairment will constitute a disability.

29 C.F.R. § 1630.2(j)(1)(ii

Rule of Construction No. 3: Extensive Analysis Not Required

The primary object of attention should be whether discrimination has occurred. Whether an impairment “substantially limits” a MLA should not demand extensive analysis.

29 C.F.R. § 1630.2(j)(1)(iii)

Rule of Construction No. 4: Lower Functional Limitation

Whether impairment substantially limits a MLA still requires an individualized assessment.

However, in determining whether a particular individual’s impairment substantially limits a MLA, the term “substantially limits” shall be interpreted to require a lower degree of functional limitation than the standard applied prior to the ADAAA.

29 C.F.R. § 1630.2(j)(1)(iv)

Rule of Construction No. 5: Scientific Analysis Not Required

The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical analysis.

However, such evidence may be used if appropriate.

29 C.F.R. § 1630.2(j)(1)(v)

Rule of Construction No. 6: Beneficial Effects of Mitigating

Measures The determination of whether an

impairment substantially limits a major life activity shall be made without regard to the ameliorative (positive) effects of mitigating measures (other than ordinary eyeglasses or contact lenses).

29 C.F.R. § 1630.2(j)(1)(vi)

Non-exhaustive List of Mitigating Measures

Medication Medical Supplies, Equipment, and Appliances Low-vision Devices (Not Ordinary Eyeglasses or Contact

Lenses) Prosthetics Hearing Aids and Cochlear Implants Mobility Devices Oxygen Therapy Equipment Learned Behavioral or Adaptive Neurological Modifications Psychotherapy, Behavioral Therapy, and Physical

Therapy29 C.F.R. § 1630.2(j)(5)

Relevance of Mitigating Measures to Other Issues

The use or non-use of mitigating measures, and any consequences thereof, including any ameliorative and non-ameliorative effects, may be relevant in determining whether an individual is qualified or poses a direct threat to safety.

Appendix to 29 C.F.R. Part 1630

Eyeglasses and Contact Lenses

The ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a MLA.

29 C.F.R. § 1630.2(j)(1)(vi)

Rule of Construction No. 7: Impairment Episodic or in

Remission

An impairment that is episodic or in remission is a disability if it would substantially limit a MLA when active.

29 C.F.R. § 1630.2(j)(1)(vii)

Rule of Construction No. 8: Limitation of Only One MLA May

Be a Disability

An impairment that substantially limits one MLA need not substantially limit any other MLA in order to be considered a substantially limiting impairment.

29 C.F.R. § 1630.2(j)(1)(viii)

Rule of Construction No. 9: Short Term Impairment May Be Disabling

The effects of an impairment that lasts or is expected to last less than six months can be substantially limiting.

29 C.F.R. § 1630.2(j)(1)(ix)

Predictable Assessments

Applying the 9 rules of construction in conducting individualized assessments of some types of impairments will result in a finding of an actual disability in virtually all cases because the impairment substantially limits a MLA: Deafness Blindness Intellectual Disability (fka Mental Retardation) Partially Or Completely Missing Limbs Mobility Impairments Requiring Wheelchair Use Autism Cancer Cerebral Palsy

Predictable Assessments (cont’d)

Diabetes Epilepsy HIV Infection Multiple Sclerosis Muscular Dystrophy Major Depressive Disorder Bipolar Disorder Post-Traumatic Stress Disorder Obsessive-Compulsive Disorder Schizophrenia

29 C.F.R. § 1630.2(j)(3)

Other Impairments

For other impairments, the “condition, manner or duration” framework may help to determine whether an individual is substantially limited by the impairment. The employer may consider: the difficulty, effort, or time required by the individual to

perform a MLA; the pain experienced by the individual when performing

a MLA; the length of time the individual can perform the MLA;

and the length of time it takes the individual to perform the

MLA;as compared to most people in the general population.

29 C.F.R. § 1630.2(j)(4)(i)-(ii

Condition, Manner or Duration

Other considerations may include: the way an impairment affects the

operation of a major bodily function; and the non-ameliorative effects of mitigating

measures (e.g., negative side effects of medication, burdens associated with following a particular treatment regimen).

29 C.F.R. § 1630.2(j)(4)(ii)

Condition, Manner or Duration (cont’d)

The focus is on how a MLA is substantially limited, and not on what outcomes an individual can achieve.

For example, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in the MLA of learning because of the additional time or effort he or she must spend to read, write, or learn compared to most people in the general population.

29 C.F.R. § 1630.2(j)(4)(iii)

Major Life Activity of Working

The discussion of the MLA of working has been removed from the regs.

In most instances, an individual with a disability will be able to establish coverage by showing substantial limitation of a major life activity other than working.

Impairments that substantially limit a person’s ability to work usually substantially limit one or more other major life activities.


The Second Prong: “Record of” Disability

An individual will be considered to have a record of a disability if the individual: has a history of an impairment that

substantially limited one or more major life activities when compared to most people in the general population,

or was misclassified as having had such an impairment.

29 C.F.R. § 1630.2(k)(2)

Reasonable Accommodation for a “Record of” Disability

An individual with a record of a substantially limiting impairment may be entitled, absent undue hardship, to a reasonable accommodation if needed and related to the past disability.

For example, an employee with an impairment that previously limited, but no longer substantially limits, a MLA may need leave or a schedule change to permit him or her to attend follow-up or “monitoring” appointments with a health care provider.

29 C.F.R. § 1630.2(k)(3)

The Third Prong: “Regarded as” Disabled

The third prong of the definition of disability protects an individual who is “regarded as” having a disability.

This means that an individual cannot be subjected to an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor.

29 C.F.R. § 1603.2(g)(1)(iii)

“Substantially Limits” and “MLAs” Are Irrelevant

An individual is “regarded as” disabled if the individual has been subjected to a prohibited action because of an actual or perceived impairment, whether or not: the impairment substantially limits a MLA; the impairment was perceived to substantially limit

a MLA, or the individual has a record of an impairment that

substantially limits a MLA.

29 C.F.R. §§1630.2(g)(3) and 1630.2(l)(1)

No Reasonable Accommodation for “Regarded as” Disabilities

An individual who is disabled solely because he or she is “regarded as” having an impairment is not entitled to a reasonable accommodation.

29 C.F.R. §1630.9(e)

Liability in “Regarded as” Cases

The “regarded as” prong should become the primary means of establishing liability in ADA cases that do not involve reasonable accommodation, because the claimant need not establish an impairment that substantially limits a MLA or a record of such an impairment.

Consideration of coverage under first two prongs will generally not be necessary unless reasonable accommodation is an issue.

29 C.F.R. §1630.2(g)(3)

Liability in “Regarded as” Cases (Cont’d)

A “regarded as” claimant who merely establishes that he or she was “regarded as” impaired does not establish liability under the ADA.

The “regarded as” claimant must establish that he or she was subjected to a prohibited action because he or she was regarded as impaired, in order to establish liability under the ADA.

29 C.F.R. §1630.2(l)(3)

Prohibited Actions

Include (but are not limited to): refusal to hire demotion placement on involuntary leave termination exclusion for failure to meet a qualification standard harassment denial of any other term, condition, or privilege of

employment

29 C.F.R. §1630.2(l)(1)

“Transitory and Minor”

The employer has a defense to the “regarded as” claim if the employer can show that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both “transitory” and “minor.”

29 C.F.R. §1630.15(f)

“Transitory and Minor” (Cont’d)

“Transitory” is defined as lasting or expected to last six months or less.

“Minor” is undefined.

29 C.F.R. §1630.15(f)

“Transitory and Minor” (Cont’d)

The employer must establish that the impairment is both transitory and minor to avoid coverage under the ADA.

An impairment that may last for six months or less, but is not minor, is covered.

An impairment that is minor, but lasts or is expected to last for more than six months, is covered.

29 C.F.R. §1630.15(f)

“Transitory and Minor” Is an Objective Standard

Whether the impairment is or would be “transitory and minor” is determined by an objective standard.

The employer cannot defeat a “regarded as” claim simply by demonstrating that the employer subjectively believed the impairment was transitory and minor.

29 C.F.R. §1630.15(f)

Examples of “Regarded as” Discrimination

An employer who terminates an employee because the employer believes the employee has bipolar disorder has violated the ADA even if the employer believed the employee’s impairment was transitory and minor, because bipolar disorder is not objectively transitory and minor.

Likewise, an employer who terminated an employee with an objectively “transitory and minor” hand wound, mistakenly believing it to be symptomatic of HIV infection, has violated the ADA, since the covered entity took a prohibited employment action based on a perceived impairment (HIV infection) that is not “transitory and minor.”


Summary Points

Discrimination claims, other than failure to accommodate claims, will be brought under third prong, where individual need not prove that impairment substantially limits a MLA or is perceived to substantially limit a MLA.

“Predictable assessments” reg provides a list of impairments that will almost always be disabilities.

Regs provide “condition, manner and duration” analysis, which may be helpful in analyzing impairments that are not in the “predictable assessments” category.

Analysis of effect of impairment on MLA of working will generally be unnecessary.

Take-Aways

The definitions of “disability,” “substantially limits” and “major life activities” are now so broad that some lawyers recommend that employers: assume that everyone has a disability, treat every impairment as a disability, treat every employee request as a potential ADA

claim, and regard every adverse employment action related to

an applicant’s or employee’s physical, mental or emotional condition as a potential disability discrimination claim under the ADA.

Take-Aways (Cont’d)

Train supervisors and managers how to spot ADA issues and when to call HR.

Expect more accommodation requests especially involving scheduling and leave.

Refresh your understanding of “reasonable accommodations.”

Read EEOC’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act. - http://wws.eeoc.gov/policy/docs/accommodation.html

Watch for EEOC to update its publications on reasonable accommodations.

ADAAA Resources

The EEOC’s Final Regulations Implementing the ADAAA Questions and Answers on the Final Rule Implementing

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

Rule Implementing the ADA Amendments Act of 2008 Fact Sheet on the EEOC’s Final Regulations

Implementing the ADAAA The ADA: A Primer for Small Business

http://www.eeoc.gov/laws/types/disability.cfm

Moffatt Thomas

Recent Developments Under the FMLA

Patricia M. Olsson

September 30, 2011

GOAL OF PRESENTATION

Several recent U.S. Supreme Court and Ninth Circuit Court of Appeals FMLA cases.

Review both facts and holdings of the Court.

Then, if relevant, apply ADAAA and 2011 ADAAA Regulations to the facts in cases.

Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 21 (2003)

State employee took twelve (12) weeks intermittent FMLA leave to care for his sick wife.

Before leave expired, state agency told employee to return to work or lose his job.

Employee lost his job and sued for damages.


(cont’d)

State defendant based on the Eleventh Amendment.

HELD: Congress abrogated State immunity via the FMLA and State can be sued for money damages.


(cont’d)

Analysis under the ADAAA: N/A

Ragsdale v. Wolverine World Wide,533 U.S. 81 (2002)

Private employer gave employee thirty (30) weeks of medical leave under its own policy.

Employer failed to immediately send employee notice of FMLA leave and employee’s rights and obligations under FMLA.

Employer terminated employee at the end of leave, telling her FMLA exhausted.

Ragsdale v. Wolverine World Wide,533 U.S. 81 (2002)

(cont’d)

Employee sued, arguing she had more leave because employer did not give timely FMLA notice.

Lower courts held, pursuant to the D.O.L. Reg’s, that leave did not start until notice given.

U.S. Supreme Court accepted the case for argument.

HELD: D.O.L. could not expand the quantity of leave authorized by Congress merely by passing a regulation.

Analysis Under the ADAAA

Lewis v. United States, __ F.3d __ 2011 WL2043241 (May 26, 2011)

Lewis employed as director of a child development center on Elemendorf Air Force Base.

In 2006, Lewis requested 120 days leave without pay under the FMLA.

Employer requested medical certification and completion of the D.O.L. medical certification form (WH-380).


(cont’d)

In response, Lewis submitted:

a) Prescription from her psychiatrist;

b) A letter from her psychiatrist; and

c) Completed WH-380 form.


(cont’d)

Employer told Lewis documents insufficient.

Lewis refused to submit more information, and said that according to her doctor, she had provided all necessary information.

Employee deemed AWOL and terminated.

Lewis sued under Title VII and FMLA retaliation.


(cont’d)

HELD: Employer may request a medical certification that provides sufficient medical facts supporting the conclusion that employee suffers from a serious health condition.


(cont’d)

Lewis’s WH-380 form stated:Diagnosis post traumatic stress disorder,

employee needs therapy, medical treatment, bed rest, two (2) prescription medications, and 120 days off work.

Because form did not explain why Lewis was unable to perform her work duties, and because there was no discussion about whether additional treatments would be required, it did not provide “a summary of the medical facts supporting the diagnosis,” pursuant to 5 U.S.C. § 6383(b)(3): Certification must state the “appropriate medical facts.”


(cont’d)

Also held: certification did not provide the minimum information required by 5 U.S.C. § 6383(b).

Brownfield v. Yakima, 612 F.3d 1140 (9th Cir. 2010)

Brownfield began employment as a police officer for the City of Yakima in 1999.

In 2000, Brownfield suffered a closed head injury while working.

Employee was off work with symptoms including reduced self awareness.

Employee returned to work in July 2001.


(cont’d)

In 2004, Brownfield complained about fellow officer, citing what Brownfield called “unethical work practices.”

His memorandum actually complained about unfairness to him, Brownfield.

Brownfield felt his partner was allowed to work on other stuff when he had not been allowed to work on SWAT because he was assigned to DARE, as was his partner.


(cont’d)

During the next year, Brownfield kept notes about partner’s alleged failure to follow procedures, partner’s abusive amounts of overtime and comp time, and partner’s lackadaisical approach to Police Athletic League (“PAL”) duties, to which he was assigned in addition to DARE.

Brownfield reprimanded for failing to schedule something, and forwarded his notes regarding partner to the police chief.

Followed that with another memo complaining about his partner.


(cont’d)

In 2005, Brownfield’s sergeant met with Brownfield and their lieutenant to discuss Brownfield’s problems with his partner.

During that meeting, Brownfield began to swear and walked out of the meeting, despite being ordered to remain.

Sergeant walked out and found Brownfield talking to another employee; Brownfield swore at the sergeant and told the sergeant to get out of the room.


(cont’d)

Brownfield was temporarily suspended for insubordination.

Later, Brownfield tried to explain his conduct, saying that he thought he was going to meet with the police chief, not with two supervisors in his chain of command.


(cont’d)

Two months later, in September 2005, Brownfield had a disruptive argument with another officer during muster.

When Brownfield learned that the police department was investigating him rather than the other officer, he became visibly upset, swore, and did not even speak in full sentences.


(cont’d)

Later, Brownfield reported that he felt himself losing control during a traffic stop of a young child who was a passenger in a vehicle; young child taunted Brownfield, and he became so upset he shook and “he was not sure what he would do.”

Backup was necessary.


(cont’d)

Later still, Yakima Police Department (“YPD”) got a domestic violence call from Brownfield’s estranged wife.

A fellow officer reported Brownfield making comments such as, “It’s not important anyway,” “I’m not sure if it’s worth it,” and “It doesn’t matter how this ends.”


(cont’d)

Based on this collection of incidents, Brownfield was placed on administrative leave in order to undergo a Fitness For Duty Examination (“FFDE”).

October 2005, M.D. conducting the FFDE diagnosed Brownfield as suffering from “mood disorder due to a general medical condition with mixed features,” manifesting itself “in poor judgment, emotional volatility, and irritability,” which could be related to the 2000 head injury on the job.


(cont’d)

M.D. concluded Brownfield unfit for duty, and disability permanent.

Brownfield transferred from administrative to FMLA leave.

While on FMLA leave, Brownfield had another car accident off duty involving neck and back injuries; was released to return to work from that incident by a doctor who focused on medical conditions yet said he would not defer to a different physician with respect to mental health qualifications.


(cont’d)

May 2006, City was going to hold a pre-termination meeting with Brownfield.

Brownfield provided release from another health care provider agreeing that he was unfit for duty due to “emotional, cognitive, behavioral, and physical problems.”

Provider treated Brownfield throughout the calendar year of 2006.

December 2006, Brownfield’s physician reported he could return to duty in the future with continued treatment.


(cont’d)

Employer asked Brownfield to submit to another exam by their physician.

Brownfield attended first appointment, but not the second scheduled by that physician, was informed he would be terminated unless he cooperated, and when Brownfield refused, was terminated on the basis of insubordination and unfitness for duty.

Employee argued that the ADA forbade medical examination unless his job performance suffered.


(cont’d)

HELD: Because he was a police officer, the business standard and the ADA allowed the Yakima Police Department to request an examination based on erratic behavior with fellow employees before actual job performance suffered.

(a) “Business Necessity” standard is sometimes satisfied by prophylactic psychological examinations, absent abuse by the employer, when there is genuine reason (that meets the reasonable person test) to doubt whether the employee can perform job-related functions.


(cont’d)

ADDITIONALLY HELD: Employee’s argument that the FMLA was violated because employer requested second and third opinions fails, because they were not opinions on the same set of facts, but were rather opinions during the course of a fluid chain of events, and afforded the employee additional opportunities to be found fit to return to work.

Traxler vs. Multnomah County,596 F.3d 1007 (9th Cir. 2010)

Facts: Traxler was employed as a human resources specialist by Multnomah County.

In 2002, Employee took medical leave under the FMLA – did not exhaust twelve (12) weeks.

In 2005, Employee took medical leave due to a serious health condition.


(cont’d)

Traxler never took more than twelve (12) weeks leave under the FMLA in any rolling calendar year.

In June 2005, Traxler was notified her position would be eliminated July 1, 2005, and was escorted out of the office.

Traxler was placed on paid administrative leave.

Traxler then transferred to a lower paying position (because her position had been eliminated).


(cont’d)

Traxler continued to take intermittent FMLA leave in the new position.

In September 2005, Traxler received an unfavorable performance review, to which Traxler filed a written response.

Traxler was terminated in late September 2005.


(cont’d)

Traxler sued, alleging she was terminated due to her legitimate use of FMLA leave.

Jury awarded her $250,000 in damages and $1,551,000 in front pay.

Issue on appeal was whether front pay was an issue to be decided by the judge or the jury.


(cont’d)

HELD: Front pay is an equitable remedy that must be determined by the Court, both as to the availability of the remedy and the amount of any award.

Conclusion

Given new ADAAA and regulations, almost all FMLA cases are ADAAA cases. Employ a dual analysis.

For Further Information or Questions, Please Contact:

Patricia M. Olsson

Moffatt, Thomas, Barrett, Rock &Fields, Chartered

101 S. Capitol Blvd., 10th Floor

Post Office Box 829

Boise, Idaho 83701

[email protected]

208.385.5410

1.800.422.2889

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