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As you know, the Americans with Disabilities Act Amendment Act of 2008 ("ADAAA") became effective just over a year ago making significant changes to the Americans with Disabilities Act ("ADA"). The EEOC issued proposed rules on September 23, 2009, which are yet to be finalized.
Prior to the ADAAA changes, the Courts looked very favorably upon the employers in disability discrimination cases. Until the ADAAA, most disability discrimination cases have been decided in favor of employers based on the definition of disability. But now, the expanded definition of disability in the ADAAA refocuses legal analysis. The statute redirects the focus on whether employers have complied with their obligations, stating that there should not be extensive analysis of whether an individual's impairment is a disability under the ADA.
Because of the effect of these changes we expect that future litigation under the ADA will focus more on questions such as:
To avoid and minimize the risk of litigation on disability discrimination matters, we suggest the following:
Have You Adjusted to the ADAAA? (Simon D. Whiting, Employment Newsletter, February 2010)
March 23, 2010As you know, the Americans with Disabilities Act Amendment Act of 2008 ("ADAAA") became effective just over a year ago making significant changes to the Americans with Disabilities Act ("ADA"). The EEOC issued proposed rules on September 23, 2009, which are yet to be finalized.
Prior to the ADAAA changes, the Courts looked very favorably upon the employers in disability discrimination cases. Until the ADAAA, most disability discrimination cases have been decided in favor of employers based on the definition of disability. But now, the expanded definition of disability in the ADAAA refocuses legal analysis. The statute redirects the focus on whether employers have complied with their obligations, stating that there should not be extensive analysis of whether an individual's impairment is a disability under the ADA.
Because of the effect of these changes we expect that future litigation under the ADA will focus more on questions such as:
1. Whether the employee can perform the essential functions of the job.
2. Did the employer engage in an interactive process with the employee to determine whether a reasonable accommodation was possible?
3. Did the employer offer a reasonable accommodation?
4. Was the employee's disability a motivating factor in the employment decision?
2. Did the employer engage in an interactive process with the employee to determine whether a reasonable accommodation was possible?
3. Did the employer offer a reasonable accommodation?
4. Was the employee's disability a motivating factor in the employment decision?
To avoid and minimize the risk of litigation on disability discrimination matters, we suggest the following:
1. Review job descriptions to determine whether the essential functions of the job are appropriately identified.
2. Develop a reasonable accommodation process. The process should identify how to make requests for accommodation; to whom requests should be made, identifying who is responsible for the interactive process, and address the documentation necessary to record decision making.
3. Providing training to all employees responsible for making employment decisions including supervisors, managers and HR employees. Training should focus on the interactive process and the documentation required. Documentation specifically should address the accommodation requested, any accommodations offered, why accommodations were rejected and the decisions made.
4. Existing policies, employee handbooks and protocols should be reviewed to ensure consistency with this approach.
2. Develop a reasonable accommodation process. The process should identify how to make requests for accommodation; to whom requests should be made, identifying who is responsible for the interactive process, and address the documentation necessary to record decision making.
3. Providing training to all employees responsible for making employment decisions including supervisors, managers and HR employees. Training should focus on the interactive process and the documentation required. Documentation specifically should address the accommodation requested, any accommodations offered, why accommodations were rejected and the decisions made.
4. Existing policies, employee handbooks and protocols should be reviewed to ensure consistency with this approach.