ADAAA Shifts Focus From “Are They Disabled” To Did You Properly Interact With and Accomodate Them

ADAAA’s Twist On Administration Of Employment Practices

Date: August 9, 2012

By Mauro Ramirez and A. Kevin TroutmanMost experienced human resources (HR) professionals know and follow an old adage when applying policies and making employment decisions: Follow established company policies consistently. For decades, this fundamental practice has helped ensure fairness and avoid potential legal problems.

However, a recent string of actions by the U.S. Equal Employment Opportunity Commission (EEOC) illustrates how and why HR professionals must change the way they approach issues involving employees who may be disabled. In these cases, consistently following a policy without performing an individualized assessment of the circumstances will likely lead to significant legal problems. In fact, making well-reasoned policy exceptions may often be the only way to avoid such liability.

The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of an applicant or employee’s disability. It also requires employers to provide a “reasonable accommodation” when doing so would enable a disabled person to perform the essential functions of the job in question. 

In 2008, Congress passed the ADA Amendments Act (ADAAA), confirming its intent that this law should be applied in a manner to favor broad coverage of individuals. Congress took this step because it observed that courts were rejecting too many ADA claims because the employees did not qualify as “disabled” under the law. Under the revised statute and regulations, focus has shifted away from determining “who is disabled,” now looking more closely at whether an employer illegally discriminated or denied a reasonable accommodation. The results of these analyses have nearly turned some traditional HR practices upside down.

For example, many employers have traditionally allowed employees additional leave after they’ve exhausted Family and Medical Leave Act leave. However, most also limited such additional leave to one, three or six months, though such leave would not be “job protected.” If the employee was able to resume work during the extension, his return would be subject to the company’s employment needs at the time. If the employee was still unable to return to work after exhausting the additional leave, the employee would be terminated, no questions asked, but eligible for rehire

Today it is clear that for a disabled employee, consistently enforcing this policy would almost certainly violate the ADA. Instead of strictly enforcing the policy, employers must conduct individualized assessments of employees’ circumstances to determine whether another leave extension would constitute a reasonable accommodation that would enable return to performing the essential functions of the applicable job.

Going forward, this represents an important new adage for HR professionals when dealing with the ADA: Sometimes, a policy exception is the only reasonable option.

This article appeared on August 9, 2012 on Employment Law360.

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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