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Tenth Circuit Upholds Termination Of Employee Following FMLA Leave Who Could Not Perform Essential Functions Of Her Job In The “Near Future”

29 Tuesday Jan 2013

Posted by in ADA, FMLA

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The Tenth Circuit recently upheld a district court’s award of summary judgment for an employer who terminated an employee following the expiration of her FMLA leave. The employee was terminated once the employer did not believe she could return to perform her job duties in the near future and the employee could not provide a timeline for her return.

In Robert v. Board of County Com’rs. of Brown Cnty., Kansas, 691 F.3d 1211 (10th Cir. 2012), the employee, Catherine Robert, worked as a supervisor of released adult offenders for ten years. Her job entailed performing drug screenings, coordinating with service providers, testifying in court, and visiting offenders in their homes.

In January 2004, she experienced severe back and hip pain which was remedied by surgery in the spring of that year. Ms. Roberts returned to work and performed all of her work activities until November 2005 when she fell down a flight of stairs in the Brown County Courthouse. Her previous symptoms returned which required another surgery in April 2006. In the five-month span between the fall and the second surgery, Ms. Robert was accommodated by her employer, Brown County, who allowed Ms. Robert to work from home and had Ms. Robert’s co-workers cover the on-site requirements of her job.

Ms. Robert had a second surgery and subsequently used all available FMLA leave, which expired July 5, 2006. On July 17, Ms. Robert attended a follow-up appointment and was told by her doctor that she would need several weeks to begin walking with a cane, and several more before she might be able to walk unassisted. Ultimately, it was unclear when – or if – Mr. Robert would be able to return and perform all of her previous duties. On July 31, the Brown County Board of Commissioners elected to terminate Ms. Robert’s employment because she was unable to return to work at full capacity after her leave ended.

Ms. Robert sued under the ADA, alleging discrimination because of her disability. Ms. Robert claimed that the in-home visits were not essential to her job, or alternatively, that it would be a reasonable accommodation to permit Ms. Roberts to take a temporary leave of absence until she could continue those duties.

To state a prima facie case for discrimination under the ADA, a plaintiff must establish (1) she is disabled; (2) she was qualified, with or without reasonable accommodation, to perform the essential function of her job; and (3) her employer discriminated against her because of her disability. Taylor v. Pepsi-Cola, 196 F.3d 1106, 1109 (10th Cir. 1999). Here, the district court resolved this case on summary judgment in favor of the County. The Court, relying on the second prong, stated that because Ms. Robert was not able to supervise offenders in person or perform in-home (or in-office) visits with the offenders, she was no longer “qualified” for the position. The Court noted that in determining whether Ms. Robert was qualified, it would look at two criteria – (1) did the impairment prevent her from performing the essential functions of her job, and (2) if so, could she have been able to perform those functions if the County provided a reasonable accommodation? Davidson v. Am. Online, Inc., 337 F.3d 1179, 1190 (10th Cir. 2003). The Court, relying on the employer’s testimony, found that the in-home visits were an essential function of Ms. Robert’s employment, and that the temporary accommodation provided by the employer which allowed Ms. Robert to work from home and avoid such visits did not render them “non-essential.” Moreover, the Court held that permitting Ms. Robert to take a leave of absence was not a “reasonable accommodation.”

This decision is important for two reasons. First, although a leave of absence for medical treatment or recovery can be a reasonable accommodation, the Court found that it is subject to two limits. First, the employee must provide the employer with an estimated date when she can resume her essential duties. Without such a date, an employer is unable to determine whether the temporary exemption is a reasonable one. The second limitation is durational. The Court noted that “[a] leave request must assure an employer that an employee can perform the essential functions of her position in the ‘“near future.”’ Robert, 691 F.3d at 1218. Here, Ms. Robert was unable to provide a timeline for her return to work. An employer is not required to “wait and see” when an employee returns.

Second, the employer’s tolerance of Ms. Robert’s inability to perform in-home visits and to supervise offenders for a period of five months did not render those duties “non-essential,” nor did such tolerance render those accommodations “reasonable” if applied on a permanent basis. The Court correctly reasoned that employers should not be punished for temporarily accommodating employees. It would be counterproductive to punish employers who help employees by creating temporary accommodations if those actions could later be the lynchpin in forming the employee’s ADA discrimination claim.

The Robert case is a beacon for employers confronted with employee disability concerns, and can act as a guidepost to help employers address whether certain accommodations requested by an employee are in fact “reasonable.”

Do You Ask Employees For Their Facebook Passwords? Congress May Put An End To This Practice Once And For All

18 Friday May 2012

Posted by in Social Media

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In the last decade the use of social media has grown exponentially, and with it, a wide array of legal and ethical issues have emerged that employers must grapple with on a daily basis.  Many of these evolving issues have not been addressed by the Courts or the Legislature, leaving employers to guess what is permissible or create unique solutions to bypass what might be an otherwise trying legal dilemma.

One issue employers are often faced with is what, if anything, can they do to discipline or terminate an employee for what they say or do on social media.  Can you be fired for posting a political rant?  What about racially insensitive commentary?  Or how about just badmouthing your boss?  What if the rant took place when you were at home versus at work?  Does it matter if your name is easily associated with the company?  What if your last name is not listed on your Facebook account at all?  The simple answer for now is that we don’t know the answer to most of the legal questions surrounding social media because the Courts have not caught up to the technology or the legal issues surrounding its use.

Until a more clear backdrop exists, employers will continue to find new ways to “short-circuit” the uncertainty.  Sometimes this strategy works, and sometimes it backfires.  For example, a growing number of employers have sought to bypass potential social media problems by asking for every potential employee’s Facebook and Twitter passwords upfront – often on the job application itself.  Reports have even surfaced of employers asking applicants to log into their accounts during the interview to allow the interviewer to browse the applicant’s profile during the interview.  Such a request surely puts the job applicant in a bind – even if they have nothing to hide, the applicant may not wish to hand over such private information, though failing to do so may cost a qualified applicant a job.

Whether gaining access to an employee’s Facebook page really heads off any legal issues for the employer is anyone’s guess.  There are potential downsides, however.  For example, what if an employer discovers that an applicant is a member of a protected class by gaining access to their social media account?  Even if the employer chooses not to hire the applicant for a valid reason, the employer may have opened themselves up to a discrimination lawsuit just by discovering the information.  Personal information such as race, nationality, religion and age are often displayed on one’s Facebook profile – and all are protected by federal employment law.

The good news is employers may not have to wait on the Courts to answer every question.  In response to the growing trend of asking for Facebook passwords, a bill was introduced in the Senate last week known as the Password Protection Act.  This Act would prevent employers from conditioning employment based on the applicant’s surrendering of access to password protected accounts.  The Act would also prevent employers from discriminating or retaliating against existing employees who refuse to provide the information.

The Password Protection Act is interesting for a couple reasons.  First, the bill itself may put a stop to all employer requests for password-protected information which has become a growing trend, though it may raise more legal concerns than it answers.  Second, and more importantly in the grand scheme of things, this type of legislation is more proactive than we usually see in an area of law that is still developing.  The Legislature can certainly act more swiftly than the Courts to draw explicit lines concerning what is permissible employer conduct.  Will Congress continue to push to the forefront on issues surrounding social media law?  If so, we may have answers to many unresolved legal issues in social media law sooner rather than later.  How this Act is received – and if it ultimately is passed – may help pave the way for further legislation in this budding legal area.  This bill is worth keeping an eye on – both for clarity on asking for employee passwords, and for the larger issue of social media law and how it evolves from here.

Could Obama’s Jobs Proposal Really Make the Unemployed a Protected Class?

05 Wednesday Oct 2011

Posted by in Discrimination

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President Obama recently announced a jobs bill he believes will help get the ball rolling to counter rampant unemployment. Employers should know, however, that they face the potential for new lawsuits if the bill is passed. The new jobs bill would allow the 14 million unemployed workers in this country – six million of whom are classified as long-term unemployed, having been without work for 27 weeks – to sue employers who do not hire them because they are unemployed.

Currently, employers with 15 or more employees cannot screen applicants on the basis of race, color, religion, sex or national origin (unless the employer can show that the discriminatory hiring practice is due to the nature of the job and is consistent with business necessity). However, the new bill would make unemployed workers a protected class that could not be discriminated against.

The proposition is simple: employers would not be able to use an applicant’s current employment status as a reason not to hire them, nor could they post job openings that require applicants to be currently employed. If employers limited job openings to currently employed, or if an applicant believed they were not hired because of their unemployment status, the unemployed worker could sue the employer for discrimination.

This designation could be detrimental to employers for two reasons. First there is very little, if any, evidence suggesting that companies regularly discriminate against the unemployed or altogether refuse to hire them. The new jobs bill, however, would permit anyone who applied for a job but was not hired to sue the employer for discrimination. Even if the suit is ultimately baseless, employers may find themselves having to defend such actions. Second, unlike the other protected categories list above, there may be legitimate purposes for screening applicants who are unemployed. If, for example, an employer has two applicants, Applicant A who works at Company X, and Applicant B who was fired from Company X, the employer may wish to hire Applicant A believing he will be the better employee, and basing that reasoning on the evaluation of Company X, who had a much better chance to evaluate both candidates than the employer. Even if this is a legitimate reason, an employer would be subject to a discrimination suit for making such a decision.

The new jobs bill has not yet passed, but the contents of the proposal carry heavy potential implications for employers. Employers should be aware of this bill and keep an eye on it going forward.

The Supreme Court Upholds The “Business Death Penalty” For Employers Who Hire Illegal Aliens

09 Tuesday Aug 2011

Posted by in Immigration Compliance

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In May of this year, the Supreme Court, in Chamber of Commerce et al. v. Whiting et al.,563 U.S.___ (2011), upheld an Arizona law that permits the state to punish any company found to have knowingly hired undocumented workers. Traditionally, only the federal government could penalize individuals and companies for immigration offenses. This holding signals that the Supreme Court will give deference to the states as they seek to enforce immigration policies related to the licensing of businesses.

The Arizona law, which is known as the “business death penalty,” permits the state to revoke the business license of any company that is found to have knowingly hired undocumented workers. Additionally, the statute requires all employers to use E-Verify, the voluntary electronic verification system implemented by USCIS for new employees. Both provisions were upheld in the decision. Prior to the decision, serious doubts existed regarding the constitutionality of Arizona’s law (and that of six nearly identical statutes in Colorado, Mississippi, Pennsylvania, Tennessee, Virginia, and West Virginia) because federal immigration laws were previously viewed as occupying the entire field of immigration law, restricting any state enforcement. However, this decision opens the door for state governments to begin enforcing immigration policies of their own.

The Arizona statute uses the same standard as the Immigration Reform and Control Act (“IRCA”) of 1986, which penalizes employers for knowingly hiring undocumented workers. Under IRCA (and the Arizona law), knowledge can be either actual or constructive-if enough information exists that the employer “should” have known an employee was undocumented, the employer will be penalized, even if the employer did not have “actual knowledge” of the employee’s undocumented status.

But what does this decision mean for companies located outside of the seven states with such a policy? For now, there will be no change in the current legal landscape. However, the Arizona statute stands as a roadmap for other states who wish to enforce state sanctions against an offending business in an effort to curb the effects of illegal immigration. This has been a particularly pointed topic as unemployment rates remain high, and many states are likely to follow Arizona’s lead now that the Supreme Court has upheld the law.

In fact, immediately following the Whiting decision, South Carolina rushed to pass a bill that mimicked Arizona’s law prior to the close of its legislative session. South Carolina’s new statute requires businesses to use E-Verify and allows the state’s chamber of commerce to revoke the business license, tax license, or any other license of any offending company if they are found to have employed undocumented workers.

More states are likely to follow suit and adopt similar statutes. The ultimate impact is that the new regulations make businesses more vulnerable to immigration violations discovered through I-9 audits. Before this decision, companies risked civil fines and criminal penalties. Now, in addition to fines and penalties, companies are at risk of being completely shut down by their own state government for hiring undocumented workers.

Oklahoma Overhauls Worker’s Compensation System

19 Tuesday Jul 2011

Posted by in Worker's Compensation

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Earlier this year, Oklahoma passed SB 878, which is designed to overhaul Oklahoma’s worker’s compensation system. The legislation marks the first substantive changes to the system in Oklahoma in 34 years. The bill takes effect next month.

Governor Fallin spearheaded the movement to change the way Oklahoma deals with worker’s compensation by orchestrating a Worker’s Compensation Study Group to provide guidance on how to reduce Oklahoma’s workers compensation rates to make the state more competitive for job creation. The group included members of the legislature and business professionals from various backgrounds. The recommendations from the group were laid out in SB 878 and the resolution was widely supported by both Democrats and Republicans, unanimously passing through the Senate 48-0, and then easily passing the House of Representatives 88-8.

The goal of this reform was to make Oklahoma more competitive in attracting new businesses to the state by lowering the costs of worker’s compensation insurance. This goal is obtained by raising the requirements for filing a claim, adopting stronger medical standards to govern care, and reducing the likelihood of frivolous disability claims.

The bill is over 200 pages long, but a few major changes are worth noting. For starters, the bill shortens the time period that workers can file a worker’s compensation claim from 2 years to 90 days. This is a drastic change and is designed to discourage frivolous or retaliatory claims against employers for injuries that occurred years ago. Additionally, the employee now must show by a preponderance of the evidence that any “compensable injury” was in fact caused by the employment-there is no longer a presumption that the mere occurrence of an unexpected or unforeseen injury was in fact caused by the employment. The employee must also demonstrate that a work-related activity was the “major cause” of such injury. Previously, “any competent evidence” linking the workplace activity to the injury was sufficient for an employee to qualify for worker’s compensation coverage.

The bill further protects employers by limiting who qualifies as a “Qualified Independent Medical Examiner” or “Qualified ME.” Only a licensed medical doctor or doctor of Osteopathy who is qualified to perform the treatment needed may serve as a Qualified ME. Previously, individuals who were not medical doctors, such as Chiropractors, could give an opinion regarding the medical treatment required by an employee, even where the medical professional was not qualified to perform the treatment she recommended. This encouraged claimants to “doctor-shop” in order to find a doctor who would support the largest possible claim for the employee.

SB 878 also eliminates death benefits for spouses of workers killed on the job once the spouse remarries. This provision is designed to lower the overall amounts paid out by insurance companies, which in turn would help lower premiums. The legislature also believes that if worker’s compensation payouts are lowered, it would encourage increased competition among insurance companies in Oklahoma, which would also drive down insurance costs.

For a Total Temporary Disability (“TTD”), wages are still set at 70% of the worker’s average weekly wages (not to exceed the state’s average weekly wage), but the employee can collect that amount for no more than 156 weeks; previously it was 300 weeks. Moreover, an employee can no longer draw TDD if she is receiving unemployment or short term disability benefits.

The goal of SB 878 is to lower the insurance premiums businesses must pay for worker’s compensation while still providing adequate benefits to those who are injured on the job. The bill received overwhelming support from both of Oklahoma’s political parties, and will hopefully achieve its desired goal of reducing the cost of doing business in Oklahoma in order to encourage new business in the state.

ICE Continues to Punish Employers For I-9 Errors

06 Friday May 2011

Posted by in Immigration Compliance

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Since the passage of the Immigration Reform and Control Act (“IRCA”) in 1986, employers have been required to fill out an I-9 for every employee hired by the company. Although the I-9 seems rather innocuous, there are serious ramifications for errors committed by an employer.

While many employers are unaware of the risks of I-9 errors, the issue has started to emerge as more and more business find themselves subject to I-9 audits by Immigration and Customs Enforcement (“ICE”), the police division of the Department of Homeland Security. With the federal government cracking down on non-compliant businesses, employers need to take immediate steps to get their I-9s in order or risk severe criminal and civil penalties.

The New Method of Enforcement

The ability of ICE to audit employers, and issue civil and criminal penalties against the employer, is not a new concept. The federal government has had the ability to audit employers since IRCA passed in 1986, though they rarely conducted audits until recently. However, beginning in 2009, ICE issued a memorandum directing its agents to begin targeting employers for failing to properly fill out I-9’s on their employees. Unfortunately for employers, this change occurred with almost no public notice, and ICE has begun to levy hefty fines and penalties against employers for even minor errors on I-9’s.

In 2010, ICE audited over 2600 companies and is well on its way to greatly surpassing that number in 2011. The federal government sees I-9 audits as the lynchpin to curbing illegal immigration: if it becomes too risky for an employer to take the chance of hiring an illegal immigrant, available jobs will decrease and the incentive to come here illegally will also decrease. Whether or not this rationale is correct, the end result is that employers are getting slapped with severe civil and criminal penalties for even minor violations.

Corporate Risk

Despite being only one page in length, the instructions for the I-9 are over 68 pages long! ICE estimates that over 99% of ALL employers have errors on their I-9’s, and the average I-9 has five errors. The rules are confusing because the USCIS issues the official regulations on the I-9, but a separate agency, ICE, enforces the regulations and issues its own unofficial regulations, which often contradict the official USCIS guidelines. Employers are often left guessing about how to ensure I-9 compliance until ICE shows up for an inspection. At that point it’s too late.

ICE will enforce criminal penalties against the individuals running the company (from the president down to the HR manager), along with civil penalties levied against the individuals and the company for failing to properly comply. ICE has been targeting employers primarily for criminal charges if any workers are found to be illegal. Within the last year, several managers, CEOs and presidents have been sentenced to prison for hiring undocumented workers (one CEO got 27 years in prison).

Additionally, ICE has levied heavy civil fines and sanctions against employers ranging from several thousand dollars to multi-million dollar fines. ICE has also enforced civil fines against individuals, which in some cases exceeds $250,000/person. Moreover, ICE has begun to bring discrimination suits against employers who “over-document” their foreign-born legal employees (such as green card holders).

The risks are severe, and the greatest danger is the lack of knowledge amongst employers of the consequences of non-compliance, both for the company and individually. I-9 noncompliance is a corporate landmine that every company should be aware of.

Employer Risk Even If All Employees Are Legal

Even if every employee is legal, you can still face civil fines, penalties, and discrimination charges based on your I-9’s. For example, ICE recently fined Abercrombie & Fitch over $1 million for non-compliance because it’s Michigan branch had not properly complied with I-9 requirements. Abercrombie paid a third party to electronically store its I-9s, and the third party’s system had a glitch. When ICE audited and discovered the glitch (which was not Abercrombie’s fault), Abercrombie was still heavily fined for the innocent error.

Additionally, employers are liable for any errors made on their independent contractors’ I-9s! Although that may not seem intuitive, ICE has enforced civil and criminal penalties against employers who fail to monitor the actions of their independent contractors. Even if every worker is legal, ICE will still seek to enforce civil penalties against the employer in any way they can.

How to Protect Yourself And Your Business

In order to protect your business (and yourself), there are a few things every employer should do. First, every employer should have their I-9’s audited by a Corporate Immigration Attorney to assess any errors that have occurred, many of which are correctable. (Note, however, that an employer should never review its own I-9’s and make changes without being advised by an attorney first).

After an attorney performs the company’s self-audit, HR personnel should be trained on how to properly comply with I-9 procedures, and the company should adopt an I-9 compliance policy. The compliance policy should emulate “ICE Best Practices,” which are the guidelines ICE suggests each employer should adopt.

Once those steps are finished, the employer should have an annual compliance audit performed for any new employees hired since the prior audit. If an employer follows these steps, the risks of non-compliance will be greatly decreased and the employer can better protect herself and her business.

Further Information

This article barely scratches the surface on I-9 compliance. I will be hosting a free Webinar on Thursday, May 19, 2011 from 12pm-1pm where I will address the risks a business faces for failing to comply with corporate immigration laws, how to survive an I-9 audit, and what preemptive measures every business should take to ensure immigration compliance and avoid liability.

This webinar is free, but space is limited. Be sure to sign up here today.

EEOC Issues Final Regulations to Implement ADA Amendments Act of 2008

04 Monday Apr 2011

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On March 25, 2011, the Equal Employment Opportunity Commission (EEOC) issued final regulations implementing the ADA Amendments Act of 2008 (ADAAA). The final regulations are published in the Federal Register and will become effective on May 24, 2011.

Background
The ADAAA was signed into law by President George W. Bush on September 25, 2008, and went into effect January 1, 2009. The EEOC issued a Notice of Proposed Rulemaking (“NPRM”) in September 2009, to issue regulations interpreting the ADAAA. The EEOC thereafter received more than 600 comments to the NPRM. The final regulations are the EEOC’s official interpretation and guide to the ADAAA amendments after considering the public comments received on the NPRM.

The goal of the ADAAA, as confirmed by the final regulations, expands the definition of “disability” to be construed “to the maximum extent permitted by the terms of the ADA.” The ADAAA alters the current legal landscape of interpreting the ADA by rejecting the holdings of several U.S. Supreme Court decisions and rejecting portions of the EEOC’s prior ADA regulations. “The effect of these changes is to 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.”

Although certainly not an exhaustive list, here is a brief overview of a few points covered by the final regulations:

Expanded Coverage of Disabled Individuals
The ADAAA retains the ADA’s basic definition of “disability”-(1) a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such an impairment, or (3) being regarded as having such an impairment. However, the final regulations state that “[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.” Thus, the EEOC believes the primary focus of an ADA claim should be on the employer’s conduct, and not in determining whether the employee is “disabled.”

Moreover, although an individual could be covered by the ADA under one or more of the above-stated prongs, the final regulations clarify that the “regarded as” prong should be the primary means of establishing coverage in ADA cases that do not involve a claim for lack of reasonable accommodations. Accordingly, the final regulations specifically state that where an employee does not require reasonable accommodations, claims can only proceed under the “regarded as” prong of the definition of “disability.”

Impairment
In an attempt to clarify the definition of “disability” and provide guidance to employers, employees, and the courts, the NPRM contained a list of impairments that would “consistently meet” the definition of “disability,” along with a list that might meet the definition, and a third list that would not likely meet the definition. The EEOC was inundated with negative comments regarding the lists because of the ADA’s prior approach of individualized assessments.

In response, the final regulations retained only the first list-disabilities that will “consistently meet” the definition of disabled under the ADA. The non-exhaustive list of disorders that “will, at a minimum, substantially limit the major life activities” includes: deafness, blindness, autism, cancer, cerebral palsy, diabetes, epilepsy, Human Immunodeficiency Virus (HIV), multiple sclerosis, muscular dystrophy, bipolar disorder, post-traumatic stress disorder (PTSD), obsessive compulsive disorder (OCD), major depressive disorder, and schizophrenia. Although not exhaustive, the inclusion of this list means that virtually every individual suffering from an above-stated illness is “disabled” under the ADA.

Major Life Activities
The NPRM sought to expand the definition of “major life activities” through two non-exhaustive lists. The first list included activities such as caring for oneself, seeing, hearing, eating, sleeping, walking, sitting, standing, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, interacting with others, and working. The second list included major bodily functions of the immune system, special sense organs, normal cell growth, digestive, bladder, and musculoskeletal functions. Both lists were adopted in the final regulations and contain additional activities not listed here, but can be found in Section 1630.2(i) of the ADA.

Moreover, the final regulations adopted language that effectively overrules Toyota Mfg. Inc. v. Williams, 534 U.S. 184 (2002). In Toyota, the United States Supreme Court held that when determining whether an activity qualified as a “major life activity,” the activity must have been of “central importance to most people’s daily lives.” Id. at 187. The ADA no longer requires such a finding before determining whether an activity by an individual qualifies as a “major life activity.” Although a new limitation is not espoused, this language broadens what will be considered a “major life activity.”

Substantially Limits-Nine Rules of Construction
The NPRM sought to define “substantially limits” and lower the threshold for meeting the requirement. Following the notice and comment period, the final regulations do not define the term “substantially limits,” but the comments indicate that it should be a low threshold to meet. The final regulations state that “’substantially limits’ is a lower threshold than ‘prevents’ or ‘severely or significantly restricts,’ as prior Supreme Court decisions and the EEOC regulations had defined the term.” Thus the threshold for meeting “substantially limits” has been lowered.

The final regulations include nine rules of construction to be applied when determining whether an impairment “substantially limits” a major life activity:

1. The definition of “‘substantially limits’” shall be construed broadly in favor of ‘expansive coverage.’”

2. An impairment does not need to prevent, or significant or severely restrict, the individual from performing a major life function to be considered significantly limiting. Nonetheless, not every impairment is substantially limiting.

3. “The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations, not whether an individual’s impairment ‘substantially limits’ a major life activity.”

4. An individualized assessment is required for each individual-however, the standard should be lower than has previously been applied.

5. “The comparison of an individual’s performance of a major life activity to the performance of the same…activity by most people in the general population” should not ordinarily require scientific, medical, or statistical analysis.

6. The ameliorative effects of mitigating measures (other than glasses or contacts) should not be considered when determining whether an impairment substantially limits a major life activity.

7. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

8. “An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment.”

9. Short-term impairments (lasting less than six months), can be considered “substantially limiting.”

Although these factors may guide courts in their assessment of “substantially limits,” in light of the rules of construction explained by the final regulations, such an assessment may “often be unnecessary” when analyzing “whether an impairment ‘substantially limits’ a major life activity.”

Conclusion
The final regulations alter the current landscape of the ADA and ultimately allow for more individuals to qualify as “disabled” under the ADA. Employers should be aware of the changes made by the ADAAA to better accommodate employees who are disabled. Although this is not an exhaustive review, we will keep you posted on any major court decisions interpreting the amended ADA.

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