6th Cir: Must be disabled to pursue a discrimination claim under portion of ADA

The 6th Circuit Court of Appeals (Michigan, Ohio, Kentucky, Tennessee) ruled yesterday that employees challenging an employer's drug testing policy on the basis that it discriminates against those with a disability must, in fact, have a disability to pursue such a claim. In Bates et al v. Dura Automotive Systems, the Court found that employees who were terminated because they consumed drugs containing substances prohibited under Dura's drug testing policy were not "disabled" under the meaning of a particular section of the Americans With Disabilities Act. The section cited by the employees stated that it was discriminatory for a "covered entity" to use qualification standards, employment tests, or screening criteria that eliminated individuals with disabilities unless it was for a job-related and business necessity reason.

In finding for the employer on this specific issue of law, the Court held that an employee who was not first found to be disabled could not bring a claim under that section of the ADA. (Keep in mind that other sections of the ADA do protect individuals who are presumed to have a disability and/or associated with someone who has or is presumed to have a disability.) Accordingly, Dura's drug testing policy that prohibited substances commonly found in drugs such as Xanax, Lortab and Oxycodone was not instituted or carried out in violation of the ADA.

While this seems like a triumph for employers, it is important to note that the case was filed prior to the passage of the Americans with Disabilities Act Amendments Act of 2008. The opinion in Dura focused on the language of the old ADA and the construction given to that language, noting in particular that to limit the application of the section at issue to "only cover disabled individuals is not an absurd construction or inconsistent with the intent of the statute." Since Congress was clear in enacting the Amendments that the ADA should be given the broadest construction possible, it is likely that a different result would have been achieved under the Amendments; the employees stand a greater chance of being deemed "disabled" under the Amendments. (Courts had held that the Amendments were not to be applied retroactively.)

Employers who have not revisited their drug-testing policies since the enactment of the Amendments would be wise to do so. An employer such as Dura could have still prevailed if it would have been able to show that the substances prohibited were out of business necessity and job-related.

Read the full opinion here.

Earning its keep?

The EEOC has been busy, busy, busy! Three suits filed this month just on the Americans With Disabilities Act (as amended): http://www.eeoc.gov/eeoc/newsroom/release/9-9-10a.cfm?goback=%2Egde_147609_member_29930620

Neither "A" in "ADA" means "assume"

So, that whole discussion by the EEOC on the importance of interacting with your employees who request or might need a disability before taking action?

Or the post from 2008 on the changing mindset for employers thanks to the amendments to the Americans with Disabilities Act?

We were serious. And so is the EEOC, who filed suit on behalf of an employee who was offered a job, showed up for the first day of work, and had the employment offer rescinded once a member of management noticed the employee was missing some fingers.

The EEOC recently released its proposed regulations for the ADA Amendments Act of 2008. The regulations were designed to better define the provisions of the Amendments and better refine Congress’s intent in amending the ADA. In fact, the drafters of the proposed regulations made sure that we were aware that they were charged with enacting Congress’s intent that the term “disability” be broadly construed (if they mentioned it once, they mentioned it 20 times!!).

True to their task, the EEOC has broadly defined what qualifies as a disability. In fact, the proposed regulations, at this point, do not leave much question as to whether a disability exists. The list of major life activities is so extensive that almost any ailment could substantially limit one of those activities (for instance, concentrating is now considered a major life activity – who doesn’t suffer from the occasional lapse in that!). Also of note is the change which no longer allows ameliorative mitigating factors such as medication or other devices -- except eyeglasses and contact lenses -- in determining whether an activity of daily life is affected. It also important to recognize that the proposed regulations only require an ailment to substantially limit one major life activity and it does not matter whether it limits others.

Ultimately, we wish the committee spent a little bit more time letting us know what would be considered an “undue hardship” for the employer. We know that whether an ailment is a disability will be broadly construed, but there’s just not much guidance on what to do with that. For instance, the proposed regulations specifically list epilepsy as a disability, but no guidance is given on how to accommodate the disability or what would be considered an undue hardship for an employer trying to accommodate an epileptic.

Regardless, there'll be much more to come on these regulations. Stay tuned for more!

Hot off the press!

Okay, sort of.

A 7th Circuit (Indiana, Illinois, Wisconsin) Court of Appeals handed down an Americans With Disabilities Act decision that may provide us with a glimpse of how the judiciary will approach the Americans With Disabilities Act Amendments Act of 2008. The claim arose under the ADA, but the Court opined that the outcome would not have changed under the ADAAA.

In the case (Winsley v. Cook County Department of Health), the plaintiff was unable to drive after being involved in a car accident. She was diagnosed with suffering from post-traumatic stress disorder. Problem? The plaintiff was a nurse who was required as part of her job to drive to/from patients' houses. She was placed on restrictions to only drive to/from work, and the employer insisted that it could not accommodate such rigid restrictions. The plaintiff resigned and then sued under the ADA.

The 7th Circuit performed its analysis under the ADA, finding that driving was not a major life activity and, thus, Winsley was not entitled to the protections of the ADA. The Court went further, though, to state that its decision most likely would not have changed under the ADAAA. Noting that the statutory major life activities of the ADAAA are fundamental to one's every day existence, the Court stated that even the average person would consider him-/herself to be "limited in a material way" if rendered unable to perform one of those activities. Driving--well, that's a different story.

The Court noted that driving is not a right, and that many individuals choose not to drive and do not consider their quality of life diminished. Additionally, driving is one of those activities where performance can be dictated by where one resides, unlike the major life activities listed in the text of the ADAAA.

It remains to be seen whether the other circuits would hold as the 7th Circuit. And, of course, we all await the first opinion interpreting the ADAAA.

Until then, happy navigating!

Happy New Year - and New Laws!

As you're taking down the holiday decorations around your office, take a few moments to think about your successes over the past year. Relish the moment. Take it all in. Then brace yourself.

2009 is primed to be an active year for HR professionals. You may be saying, "Isn't every year active for me?" Yes, it most certainly is. So just think about what potentially awaits you if we're sending up the flare now. Consider it job security in these uncertain economic times!

It can be overwhelming to think about the changes that occurred in 2008 which are poised to take effect in 2009--FMLA, ADAAA, GINA. So let's not get overwhelmed. Instead, we'll focus on each of these one week at a time. Remember--you're not the only HR professional out there trying to get a handle on these new laws and their impact on your company. Take a deep breath, open your mind, and store your attorney's number in your speed dial for those questions that will surely arise as everyone wades through our new work environment.

This go-around, we'll focus on the ADAAA. Keep in mind--attorneys are best-guessing just like you on how this law will be implemented, interpretations of the language, and developing your best practices. Consider this entry, as well as your approach to implementation, to be a living document. Change is as much good as it is necessary under the ADAAA.

One of your biggest hurdles in embracing the new Act will be changing a mindset that has developed over the last 15 years under the ADA. No longer will the focus be on whether someone is an individual with a disability. Rather, you will now be expected to show that as the employer, you lived up to your end of the bargain by engaging in the interactive process with the employee who requests a reasonable accommodation, examining the reasonableness of the accommodation request (or developing an accommodation, depending on the case), and the effort put forth in adapting the work environment for the employee.

How do you change this ingrained philosophy? Train your managers, revisit your reasonable accommodation policy, and prop your door open for employees are some of the ways to change your ship's course.

Get in touch with your HR counsel to talk about what best practices specifically fit your organization. Use this as a dry-run for engaging in the interactive process, as you may be hesitant to follow some of the recommendations offered for a number of reasons.

And you thought taking down the decorations was exhausting work!

Happy New Year!

83A? AD3A? ADTripleA? What in the world?

Many of you would argue that your lawyer's favorite soup is alphabet, because that's the only way we know to reference laws. FMLA. ADA. FLSA. USERRA. NDAA. BINGO. (Just kidding.)

By now, you've either read or heard about GINA. It appeared that GINA was going to be the biggest piece of legislation to impact employers this year. Not quite.

On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act, or the ADAAA. As you can see, this acronym doesn't exactly roll off the tongue. My struggle thus far, aside from the substantive aspects of the Act, is figuring out how to reference it in my speeches and presentations. I'm still working on that.

But that is not of concern to you, as you have enough to handle with the substantive impact of the ADAAA. If you haven't heard about it, please don't consider this to be the sole source of your information. Google would probably refuse to give us enough space here to write about the ins-and-outs of the Act, much less how to address its impact on you. That said, here is a quick primer on the ADAAA:

1. It directs that the definition of "disability" should be broadly construed.
2. It no longer allows you to consider mitigating measures, such as medications, hearing aids, prosthetics, etc. that might be effectively addressing the impairment. The exception to this is that contacts and glasses may be considered when an employee's vision is impaired.
3. It provides 2 non-exhaustive lists of "major life activities" to be evaluated in the "substantially limits" context. The list includes activities such as thinking, concentrating, walking, eating and working. Unfortunately, the lists are not given in any context themselves, so it remains to be seen whether someone is substantially limited in, say, working, if they are unable to perform only one specific type of job, instead of working in general.

In the legislative history of the Act, Congress is reported as saying, "The question of whether an individual's impairment is a disability under the ADA should not require an extensive analysis."

Quizzically, the same Congress who passed GINA passed the ADAAA. Why is that puzzling? Well, consider what GINA addresses. It addresses the strides made in the medical field to identify genes and their impact on certain diseases, conditions, and likelihood of developing conditions in our lifetime. The ADAAA, by eliminating from consideration mitigation measures, such as transplants, drug research and bio-mechanical developments, refuses to acknowledge those strides in the medical field.

ADAAA becomes effective January 1, 2009, although the Equal Employment Opportunity Commission is unsure it will have published regulations addressing "substantially limits" before the turn of the year. Thus, you should be making appropriate adjustments to your policies and conducting training with your managers, supervisors, and HR specialists to best position your company to handle the changes that await.