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.
In Nini v. Mercer Community College, No. A-13/14-09 (N.J. June 1, 2010), the New Jersey Supreme Court upheld the Appellate Division’s 2009 decision holding that a contract renewal is equivalent to a termination; and does not, therefore, fall within the “over 70 exception” in the New Jersey Law Against Discrimination (“NJLAD”). Under the NJLAD “over 70 exception”, an employer is not engaged in an unlawful discriminatory practice if it refuses to accept for employment or [promotion] any applicant/employee over 70 years of age.
If you have any questions relating to the Nini decision or the current status of the NJLAD please do not hesitate to contact Robert A. Tandy, Esq. at (201) 474-7103.
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.
The Occupational Safety & Health Administration (“OSHA”) recently announced that employers may mandate employees take H1N1 and other seasonal vaccines. This interpretation letter was recently posted on the agency’s website in response to a constituent’s letter forwarded to the agency by Congresswoman Marcy Kaptur (D-Ohio) inquiring whether an employer could mandate she and her co-workers accept a flu shot.
While the issue has stirred great debate in the employment environment and despite having regulations allowing such activities, OSHA declared an employer is within its authority to require employees take vaccines.
OSHA did, however, caution that an employee who refuses to receive the vaccines because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death may be protected from job retaliation under Section 11 (c) of the Occupational Safety and Health Act, which prohibits discrimination and retaliation for engaging in protected activity.
Employers should proceed with caution prior to implementing mandatory vaccination policies as other laws and regulations may be applicable.
As part of our firm’s continuing commitment to serve the local business community, we are hosting a series of free breakfast legal briefings throughout 2010 to help business owners and employers contend with the legal issues facing them each day.
Each lively and interactive briefing will cover a specific legal topic, explaining the key legal issues, how small and family-owned businesses can address these issues in the most economically viable way; and how businesses can use the protection afforded them by law to their advantage.
All breakfast briefings will be held at the law office of Robert A. Tandy, LLC, One Paragon Drive, Suite 159, Montvale, New Jersey. Please feel free to invite clients and colleagues to attend the briefing with you. Our next briefing will take place on:
SESSION ONE: Wednesday, January 20, 2010 (7:30 a.m. to 8:30 a.m.)
“Employment Law for Employers”
“Effective New Employee Orientation”
Complimentary coffee and bagels will be served.
Contact us at (201) 474-7103 to reserve your spot
On November 23, 2009, the New Jersey Legislature introduced identical bills (A4198/S12) that would prohibit employers from discriminating (denying employment) against persons who have been convicted of a criminal offense or because the applicant lacks “good moral character” based upon a prior conviction. Employers would be exempt from the proposed prohibition if (i) there is a direct relationship between a previous criminal offense and the specific employment sought; or (ii) hiring the individual would pose an unreasonable risk to property or to the safety/welfare of specific persons or the general public. The proposed legislation would require employers to assess the following factors to determine if the exceptions apply: (1) public policy of encouraging employment of persons who have been convicted of crimes; (2) duties and responsibilities directly related to the position; (3) the individual’s fitness and ability to perform the job duties given the prior criminal offense; (4) the amount of time that has elapsed since the offense was committed; (5) the individual’s age when the crime/offense was committed; (6) the seriousness of the offense; (7) evidence of rehabilitation and good conduct; and (8) the legitimate interest of the employer in protecting property and the safety/welfare of specific individuals or the general public. Similar laws in other states have created much litigation for employers.
The proposed litigation also seeks to preclude employers from asking applicants whether they have ever been arrested, charged with a crime, convicted of a sealed non-criminal offense, or offenses committed as a juvenile.
Employers who perform background checks would be required to (i) advise applicants a background check may be required with the application; (ii) within 30 days of requesting a background report, advise the applicant of same and the name and address of the reporting agency; and (iii) advise applicants they may review the background report. The employer would also be required to provide the applicant with a copy of the law. Under the proposed legislation, employers would also be required to provide any applicant who has been denied employment with a written statement as to the basis for denying employment within 30 days of the applicant’s request for the statement.