The Equal Employment Opportunity Commission released the much anticipated Final Regulations implementing the ADA Amendments Act (ADAAA). The ADAAA became effective on January 1, 2009. The Final Regulations will take effect on May 24, 2011.
The Final Regulations “make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.” The ADAAA expanded the definition of who is “disabled” and emphasized an employer should focus on whether employers complied with their obligations under the law and whether discrimination, in fact, occurred, not whether individuals are disabled under the law. The Final Regulations provide rules of construction for employers to employ in determining if an individual is substantially limited, including:
· An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting,” but noting that not every impairment will constitute a disability;
· Construing “substantially limits” broadly and in favor of coverage;
· Determining whether an individual suffers from a disability does not require an extensive analysis, but it requires an individualized assessment;
· Determining whether an impairment substantially limits a major life activity is made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids, but employers can consider the effects of ordinary eyeglasses or contact lenses on vision impairments;
· Determining whether an impairment substantially limits a major life activity will not usually require scientific, medical, or statistical evidence;
· Finding that an impairment that is episodic or in remission is a disability if it substantially limits a major life activity when active; and
· Finding that impairments lasting fewer than six months can be substantially limiting.
Employers should train supervisors and managers on the employer’s obligations pursuant to the ADAAA and the Final Regulations and provide clear guidelines for interacting with employees and prospective employees.
On April 8, 2010, the Court of Appeals for the Third Circuit held that employers must provide “reasonable accommodations” to disabled employees in establishing work schedules, even when the sole disability-related issue involves an employee’s commute to work. In Colwell v. Rite Aid Corp., No. 08-4675 (3d Cir. Apr. 8, 2010), Jeanette Colwell, a part time retail clerk, who was diagnosed with retinal vein occlusion in her left eye, later became blind in that eye. Although she was able to perform the essential functions of her job once she arrived at work, her handicap made it difficult to drive at night. She requested a shift change whereby she would only work during day shifts. There were no taxis available and public transportation ended at 6 p.m.
Rite Aid’s supervisor refused her shift change request advising it would be unfair to the other employees and would be violative of the collective bargaining agreement as shift assignments were based on seniority.
After repeated requests for shift changes were rejected and/or left unaddressed, Colwell resigned her employment and filed suit alleging, among other claims, Rite Aid failed to accommodate her disability, constructive discharge and retaliation. The district court dismissed her complaint.
The Third Circuit affirmed the dismissal of her constructive discharge and retaliation claims but reversed on the failure to accommodate claim holding there was an issue of fact as to whether Rite Aid tried to accommodate her disability.
In rejecting Rite Aid’s argument that Colwell was seeking a non-workplace related accommodation, i.e., commuting to work, the Court held the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related difficulties in getting to work. Rite Aid failed to argue that the requested accommodation created an undue hardship on its business.
Employers are reminded there is an affirmative obligation for employers to engage in the interactive process.
If you have any questions relating to an employer’s obligations to engage in the interactive process contact Robert A. Tandy, Esq at (201) 474-7103.