Navigating the Amendments to the Americans with Disabilities Act and the EEOCs Final Rule

A CIGNA White Paper

The focus is no longer about whether or not an individual can prove they have a disability, but instead, on whether or not an employer complied with its obligations under the ADA and whether discrimination occurred.

848011 07/11

On March 24, 2011, the Equal Employment Opportunity Commission* (EEOC) issued final regulations for the Americans with Disabilities Amendment Act (ADAAA) of 2008. The final regulations, also referred to as the Final Rule, provide clarification and guidance on the ADAAA and became effective May 24, 2011. The ADAAA, which became effective January 1, 2009, overturned a series of Supreme Court rulings that had narrowed the scope of the Americans with Disabilities Act (ADA). In passing the ADAAA, Congress intended to reinstate a broad scope of protection to be available under the ADA. Consistent with the ADAAAs intent, the Final Rule was drafted with the clear intent that the term disability is to be construed in favor of broad coverage. As a result, the EEOC and courts will now focus on whether an employer complied with its legal obligations under the ADA, instead of whether an individual has a disability. Consequently, more employees will qualify for protection under the ADA. This white paper explains what employers need to know about complying with the ADAAA and the Final Rule. From defining important terms to providing real-life examples, weve broken down the legal-speak and created a resource that can help you comply with the ADAAA. The paper includes a high-level overview on the nuts and bolts of the law (page 3); information on how the ADAAA impacts other individual benefits and employment laws, such as the Family and Medical Leave Act (FMLA) (page 8); and tips on minimizing risk (page 9). Finally, youll learn about workplace accommodations and how they can help individuals overcome performance issues and keep employees at work.

the Final Rule was drafted with the clear intent that the term disability is to be construed in favor of broad coverage.

*The EEOC is the federal agency that enforces the Americans with Disabilities Act (ADA).
2

What Employers Need to Know: the Nuts and Bolts of the Final Rule
It is Now Easier for Individuals to Qualify for Protection under the ADA.
Before the ADAAA, it was more difficult for individuals to qualify as disabled under the ADA and, therefore, be protected by the law. In defending an ADA claim, employers often focused on whether the individual had a disability covered under the ADA. If an employer successfully demonstrated that the individual did not have a covered disability, it could successfully argue that ADA regulations were not applicable for that employee. The ADAAA and the Final Rule overturned Supreme Court precedent that limited the scope of the ADA, and broadened the scope of the ADA. As a result, it is much easier for individuals seeking protection under the ADA to meet the definition of disabled. Under the ADAAA and the Final Rule, employers can assume there will be a notable increase in the number of individuals and applicants who will be considered disabled and, therefore, protected.

it is much easier for individuals seeking protection under the ADA to meet the definition of disabled.

The Individual with the Disability is Responsible for Requesting a Reasonable Accommodation
Employers are obligated to make reasonable accommodations only to the physical or mental limitations that are known by the employer. An employer is not expected to accommodate disabilities of which it is unaware. If an individual with a known disability is having difficulty performing their job, the employer may inquire whether the employee is in need of a reasonable accommodation. In general, however, it is the individuals responsibility to request a reasonable accommodation from the employer. It should be noted that the accommodation request may also be requested by someone on behalf of the individual, such as a health care provider or family member.

it is the individuals responsibility to request a reasonable accommodation from the employer.

When requesting a reasonable accommodation, an individual does not have to specifically mention the ADA or specifically use the term reasonable accommodation. An accommodation request need only be made in plain English and can be raised verbally or in writing. An employer may request reasonable documentation (i.e., medical records) that the individual has an ADA-qualifying disability and needs a reasonable accommodation. An employer cannot, however, ask for documentation when: 1. both the disability and the need for reasonable accommodation are obvious; or 2. the individual has already provided the employer with sufficient information to substantiate that he or she has an ADA disability and needs the reasonable accommodation requested.

Reasonable accommodations may take many forms, including:

n

Adjustments to existing facilities Acquiring or modifying equipment Providing qualified readers or interpreters Reassigning the individual to a vacant position Changing tests, training materials or policies

Employers Must Attempt to Provide Reasonable Accommodations to Individuals with Disabilities

A reasonable accommodation is any change in the work environment to help a disabled individual apply for a job, perform the duties of a job or enjoy the benefits and privileges of employment equal to those enjoyed by individuals without disabilities. Employers do not need to create new jobs for disabled individuals. The guiding principle is that an individual should be able to perform the essential functions of their job with or without a reasonable accommodation. The law requires that the accommodation be reasonable; it does not have to be the accommodation that the individual requested, the best accommodation, or the most expensive accommodation. An employer is not required to make an accommodation if it would impose an undue hardship on the operation of the employers business. Undue hardship, which is determined on a case-by-case basis, is significant difficulty or expense in, or resulting from, the accommodation. Accordingly, an accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business is not reasonable. An employer has the burden of demonstrating that an accommodation is an
4

undue hardship. Therefore, an employer should document thoroughly how the accommodation would change the nature of the business, its ability to function or otherwise adversely affect business operations. Because the full resources of an employer are considered, a larger employer with greater resources may be expected to make an accommodation requiring greater effort or expense than a small employer with fewer resources. If an accommodation results in an undue hardship, the employer must try to identify another accommodation that would be reasonable.

The ADAAA does not apply retroactively. It does not apply to acts that occurred prior to January 1, 2009.

Who Must Comply?

These ADA Regulations apply to the following employers, regardless of the number of employees (unless noted below):
n n n n

Employment agencies Labor organizations (unions) Joint labor-management committees Private, and state and local government employers with 15 or more employees

Disability Discrimination
As stated in the Final Rule, The ADA as amended, and these regulations, are intended to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities, and to provide clear, strong, consistent, enforceable standards addressing discrimination. According to the ADAAA, disabled individuals are in a protected class. Disability discrimination is prohibited in the full range of employment and personnel practices, such as recruitment, hiring, rates of pay, promotions, terminations, providing leave, fringe benefits, stay-atwork programs, training selection and qualification standards intended to screen out individuals with disabilities. It is also illegal to harass individuals because of a real or perceived disability.

Disability discrimination is prohibited in the full range of employment and personnel practices

Defining Disability: The Three-Pronged Approach

The ADAAA employs a three-pronged approach to defining disability, which is broader than under the pre-amendment ADA. The Final Rule does not change this definition, but rather, enhances it to allow for an even broader interpretation. PRONG #1: An Actual Disability An individual with a physical or mental impairment that substantially limits one or more major life activities, as compared to most people in the general population, has an actual disability. Example: an individual with cancer or a hearing impairment. PRONG #2: A Record of Disability An individual with a record (i.e., history) of a physical or mental impairment that substantially limits one or more major life activities. Example: an individual whose cancer is in remission. PRONG #3: Regarded As Having a Disability An individual only needs to establish they were regarded as (i.e., perceived as) having a disability, and that they were discriminated against on that basis. The individual does not need to show that they actually have an impairment that substantially limits one or more major life activities. Employers do not need to make accommodations for individuals who are regarded as disabled. Additionally, conditions that are both transitory and minor are excluded from protection under the regarded as prong of the disability definition. Transitory is defined as lasting six months or less. While the regulations do not define the term minor, it is likely that this term will be defined through litigation over time.

An Example: The interpretive guidance to the Final Rule provides the following examples to illustrate the regarded as prong of the disability definition. If an employer refused to hire an applicant because of skin graft scars, the employer has regarded the applicant as an individual with a disability. Similarly, if an employer terminates an employee because he has cancer, the employer has regarded the employee as an individual with a disability.

What is a Major Life Activity?

n

According to the ADAAA, major life activity is broadly applied to include activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. Sitting, reaching, interacting with others and major bodily functions were added to this list as part of the Final Rule. Major bodily functions include functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory and reproductive functions, as well as functions of the special sense organs and skin; and genitourinary, cardiovascular, hemic, lymphatic and musculoskeletal functions and the operation of an individual organ within a body system, such as the operation of the kidneys, liver or pancreas.

What is a Physical and Mental Impairment?

The Final Rule defines a mental or psychological disorder as an intellectual disability, organic brain syndrome, emotional or mental illness and specific learning disabilities.

Impact to Individual Benefits and Programs, and other Employment Laws

Employers should think broadly in terms of how the ADA regulations impact other individual benefits and laws. The ADAs definition of disability may differ from how disability is defined under a short-term or long-term disability plan, or under the FMLAs definition of a serious health condition. As a result, just because an individual qualifies as disabled under another law or a disability benefit plan, it does not mean that they meet the ADAs definition of disability. Conversely, even if an employee does not qualify for disability benefits under a disability plan, they may still
7

The ADAs definition of disability may differ from how disability is defined under a shortterm or long-term disability plan

qualify for protection under the ADA and be entitled to a reasonable accommodation. Employers should, therefore, evaluate employee eligibility for benefits and other legal protections according to each benefit plan or law.

Leave Absence Laws

If an employee exhausts their leave entitlement under the FMLA or a state leave law, if they have a covered disability under the ADA they may be entitled to additional unpaid leave as a reasonable accommodation. Further, if an employee does not qualify for FMLA leave and they have a disability as defined under the ADA, they may be entitled to unpaid leave as an ADA reasonable accommodation. As discussed above, a reasonable accommodation does not have to be the best accommodation; it only needs to be reasonable. Therefore, employers only need to use a leave of absence as a reasonable accommodation if there are no other reasonable accommodations that enable the employee to perform the essential functions of their job. If an individual does take a leave either as a reasonable accommodation under the ADA or for FMLA reasons they may still be eligible for additional leave, or other accommodations, which may include time off for doctors appointments, therapy sessions or other medical appointments. (Remember, an individual who has a record of a disability is still entitled to reasonable accommodations. For example, an individual whose cancer has been in remission for five years may require time off for follow-up doctor appointments.) The EEOC has taken the position that inflexible leave policies violate the ADA. Therefore, employers with automatic termination policies after set time periods or policies that permit an individual to return to work only when they have no restrictions, violate the ADA according to the EEOC.

a reasonable accommodation does not have to be the best accommodation; it only needs to be reasonable.

The EEOC has taken the position that inflexible leave policies violate the ADA.

Proactive Steps Today Minimize Risk Tomorrow

Employers can take several steps to ensure compliance with the ADA, including:
n

Reviewing disability discrimination and ADA policies to conform to the ADAAA and Final Rule. Training human resources and managers on the ADA. Engaging in and documenting the interactive process when an individual requests an accommodation. Keeping a record of information such as dates, conversations and accommodations made, and reasons for accommodations not made. Requesting documentation that supports the existence of a disability or need for workplace accommodation if the disability is not obvious or known to the employer. Focusing on qualifications, not disabilities, when hiring, firing, granting promotions, raises, benefits, and other terms and conditions of employment. Documenting decisions that relate to the disabled individual based on job performance, not disability.

n n

Employers can also visit www.eeoc.gov/laws/statutes/adaaa_info.cfm for question-and-answer guides from the EEOC. Contact your CIGNA Sales Representative for more information and how CIGNA can help you comply with the ADA, the FMLA and your disability plans.

The information contained herein does not constitute legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have. CIGNA assumes no responsibility for any circumstances arising out of the use, misuse, interpretation, or application of any information supplied in this publication. CIGNA and the Tree of Life logo are registered service marks of CIGNA Intellectual Property, Inc., licensed for use by CIGNA Corporation and its operating subsidiaries.All products and services are provided exclusively by such operating subsidiaries and not by CIGNA Corporation. Such operating subsidiaries include Life Insurance Company of North America, CIGNA Life Insurance Company of New York, and Connecticut General Life Insurance Company. 848011 07/11 CIGNA 2011. Some content provided under license.
9