Employers face new era of ADA compliance issues

By: Karen Elliott. This was posted Friday, March 14th, 2014

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A recent Fourth Circuit opinion and state laws like New Jersey’s new pregnancy accommodation statute highlight the new era of compliance issues facing employers dealing with worker medical situations. Accommodating issues of temporary disabilities and pregnancy-related impairments, and whether to provide leave or reduced job duties as accommodations lead the list of issues for 2014.  Managing these complex leave laws while running a profitable business will prove challenging for employers.

To understand the current dilemma facing employers, a little history helps. The Americans with Disabilities Act was amended in 2008 to compel “broad coverage” regarding who qualifies as disabled and therefore entitled to the law’s protections.  Congress clearly expressed its desire to move the focus of discussion from “does it qualify as a disability” to “how to accommodate.”  The amendments and the new regulations require employers to focus on whether a reasonable workplace adjustment or accommodation can resolve the employee’s issue, rather than get hung up over whether the individual legally qualifies as “disabled.”  

Thus, the number of employees covered by the amended ADA grew exponentially because of the expanded definition of “actual” disability.  The amendments clearly overturned prior restrictive constructions of the statute.  But, as usually occurs with new laws, new battles arose over the limits of how inclusively or restrictively to construct the new terms. One legal battle moved from “actual” disabilities to “temporary” impairments. Did the amended statute intend to encompass temporary disabilities? The amended ADA itself does not clearly include temporary impairments.  But, the EEOC answered “yes” and its implementing regulations define disability to include severe temporary impairments.   When presented with the question of whether or not the EEOC’s definition went too far, the Fourth Circuit resolved that question in the negative for businesses in Maryland, Virginia, North Carolina, South Carolina and West Virginia, the states in its judicial district.  In Summers v. Altarum Institute, Corp. the Court definitively held that workers with temporary but severe medical conditions also qualify for ADA protection.  Couple this decision with the fact that some states (and possibly the ADA) require accommodation of pregnancy issues, employers may wonder who isn’t covered?

The Fourth Circuit made clear in Summers that it takes the expansion of amended ADA coverage to the extended limits imposed by the EEOC’s regulations – which the Court upheld as a legal, defensible limit.  The new question now revolves around defining the limits of “severe.”  The Court gave a significant hint towards resolving this question.  The Court cited with approval the EEOC regulation appendix illustration:  “[I]f an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability.”

Contrast the Summers opinion and the amended ADA requirements with the Fourth Circuit’s Young. v. United Parcel Service Inc.  opinion from a year ago interpreting ADA pre-amendments, where a 25-pound lifting restriction was held not to constitute a significant impairment. The Court’s new ruling thus requires employers (and their lawyers) to readjust their disability accommodation analysis accordingly.

The Court’s holding in Summers also raises the question of whether employers must accommodate a pregnant employee with a temporary lifting restriction, and if so, how.  The EEOC advised in a pre-amended ADA technical assistance memo that pregnancies without complications did not qualify as a disability. But the amended ADA’s coverage of temporary but severe conditions raises the question of just what pregnancy “conditions” might now qualify for accommodation? With the Summers decision, a wide range of pregnancy-related physical impairments may now qualify as ADA-covered disabilities.  (Such examples of impairments that might qualify include severe morning sickness, pre-eclampsia, post-partum depression, gestational diabetes, uterine fibroids, or high blood pressure.)  A lifting restriction may or may not be “severe,” depending upon the circumstances.

Some states have enacted further pregnancy protections. For example, New Jersey just enacted protections for pregnant women employed in that state.  Protections include making a reasonable accommodation for an employee’s pregnancy-related medical conditions (as opposed to “impairments”) when requested by the employee upon advice of her doctor (such as bathroom breaks, periodic rest, job restructuring, assistance with manual labor, etc., but not mandating additional leave).  States with similar laws include Maryland and California.

To qualify for protection under the amended ADA, an employee must be qualified to perform the essential functions of his or her job with or without reasonable accommodation unless the accommodation would cause an undue hardship (legally, a relatively difficult burden for the employer to meet).  The amended ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities.  The ADA amendments and new regulations more broadly define “substantially limits” and “major life activities,” and challenges over this determination seldom now yield success.  The Summers decision now provides direction and clarity on temporary impairments in the Fourth Circuit.  So this now leaves the question of what accommodation does an employer have to consider providing to ADA-qualifying employees? The EEOC has provided the answer – extended leave and reduced job duties.

The EEOC recommends that employers consider giving employees who qualify as ADA disabled  unrelated to a workplace injury  leave and possibly reduced job duties as a reasonable accommodation.  If leave is the reasonable accommodation, then the employer has to fill the job with current employees or temporary hires. If reduced job duties is the reasonable accommodation, then other employees have to pitch in, or the employer makes temporary hires.  

The next big battle may occur over the light-duty/accommodation dichotomy. To stay out of trouble, employers should consider re-educating their managers to excise the term “light-duty” from their lexicon.  Why?  Too many ADA-qualifying employees ask for “light-duty” as an accommodation, and the managers respond: “We don’t do light duty except for worker’s compensation.”  It’s a matter of semantics that can cost the employer because the EEOC and plaintiff’s  now use the term “light-duty”  as their request for an ADA reasonable accommodation.

In order to keep worker’s compensation “light duty” work  separate from an ADA analysis, employers should refer to the reduced duty assigned to the employee while on worker’s compensation simply as “worker’s compensation duty.”   To make the situation even more complicated, the EEOC advises that the amended ADA requires employers to consider extending leave or providing further reduced duty at the end of worker’s compensation benefits. 

With EEOC’s advice that employers consider leave and reduced job duties as possible reasonable accommodations, and the now expanded number of employees qualifying for accommodation, overwhelmed employers may ask, how do I manage all of this and still run my business?  The amended ADA’s goal is lofty – but not always easy to implement when employers need employees to show up to do the work, especially in an era when employers have fewer employees due to the recession and a fear of hiring more until more fully evaluating the cost of the Affordable Care Act. Considering that the amended ADA applies to employers with a workforce of 15 or more employees, the law covers a significant portion of businesses – even those with relatively few employees.

In the end, employers have many complicated leave issues to implement for a much broader group of employees than ever.  From the employee’s job protection standpoint, that sounds like a good deal, but for the remaining employees, morale issues exist for an already stressed workforce.  And for the employer, there remain the issues of the cost of temporary hires and loss of productivity.  As employers examine their workforce needs, they must consider the cost of increased leave and reduced job duties when managing their bottom line.

Originally posted in Virginia Lawyers Weekly, March 10, 2014 issue. Reprinted with permission.

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