Changing the Classification of Medical Marijuana: What it Could Mean for Employers and Employees.

Medical Marijuana.jpgThe issue of how marijuana should be classified is set to be heard by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit next week.

This issue is important for employers and employees because of the downstream impact it could have in relation to the use of medical marijuana by employees under various state laws.  

In this regard, this Blog previously reported in April 2011 that approximately 63,735 Michigan residents had registered to use marijuana for medical purposes under Michigan's Medical marijuana statute. Nationally, it is estimated 16.7 million U.S. residents currently use marijuana, according to the most recent federal surveys. 

The Current Status of Using Marijuana for Medical Purposes 

Under federal law, marijuana is presently classified as an illegal schedule 1 drug. Schedule I drugs, which also include  heroin, are determined not to have any current acceptable medical use. 

The lawsuit challenging this classification seeks to compel the federal government to redefine how marijuana is classified and to open the regulatory doors for medical use. 

The Current Status of Medical Marijuana Use in the context of the Employment Relationship

For Michigan employers and employees, the most recent announcement as to how medical marijuana will be treated in the workplace was provided on September 19, 2012, when the U.S. Court of Appeals for the Sixth Circuit held that a private employer may fire an employee who test positive for medical marijuana in violation of the employer's drug use policy even if that employee has complied with Michigan's Medical Marihuana Act.

In other words, the decision arising out of Casias v. Wal-Mart Stores, Inc., makes clear that medical marijuana users are not a protected class in the context of private sector employment. 

What Changes Could Employers and Employees Expect if Marijuana's Classification Changes?

Personally, I think it highly unlikely that the present challenge to the classification of Marijuana as a schedule I drug will be changed. But it certainly could make things very interesting for both employers and employees if this change were to occur.

As this Blog previously hypothesized, it would open the door for compelling legal arguments that the use of marijuana for medicinal purposes may be a "reasonable accommodation" under Americans with Disabilities Act (ADA) or its Michigan state counterpart Persons with Disability Act.

For example, under the ADA anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use. Further, the ADA does not prevent employers from testing applicants or employees for current illegal drug use, or from making employment decisions based on verifiable results. But what happens if marijuana is no longer an illegal drug? Does this mean an employer would have to accommodate an employee who is authorized to use medical marijuana? Maybe. But then again, if my aunt had certain physical features, she would be my uncle.

Employers May Find it Harder to Defend Against ADA Claims ... Or Maybe Not.

Wheel chair.jpgIt finally happened; This blog noted back in August 2011 that the Sixth Circuit would likely make significant changes in favor of employees bringing claims under the Americans with Disabilities Act (ADA). 

On May 25, 2012, the Sixth Circuit Court of Appeals made it official in holding that plaintiff employees bringing claims under the ADA are no longer required to show that the plaintiff's disability was the "sole reason" for an adverse employment action. Instead, a plaintiff must now show that the disability was a “but-for’ cause of the employer’s adverse decision.”

Specifically, in Lewis v Humboldt Acquisition Corp. (PDF), Susan Lewis lost her ADA claim at the trial level. She appealed this decision and argued that the trial court should have instructed the jury that her disability need only be a "motivating factor" for her termination rather than the "sole factor" for the adverse employment action.

But this "motivating factor" standard was not the law in the Sixth Circuit. Instead, for the past 17 years a plaintiff bringing a claim under the ADA was required to prove that the plaintiff's disability was the "sole reason" for the adverse employment action.

In overturning the previous "sole reason" standard, the Sixth Circuit Court panel noted: 

The longer we have stood by this standard, the more out of touch it has become with the standards used by our sister circuits. At this point, no other circuit imports the “solely” test into the ADA ... Our interpretation of the ADA not only is out of sync with the other circuits, but it also is wrong. 

Accordingly, Lewis was granted a new trial to prove her former employer violated the ADA for firing her because she had a medical condition. That condition made it difficult for her to walk and occasionally required her to use a wheelchair. The employer, however, argued that Lewis was fired for an outburst at work, in which she allegedly yelled, used profanity and criticized her supervisors.

What is the standard that will now apply for bringing an ADA claim? 

Employers did not completely lose out after the reversal of the "sole reason" ADA standard. This is because Lewis had actually argued that an ADA plaintiff should only be required to show that the claimant’s disability “was a motivating factor in the adverse employment decision” in order to establish a violation under the ADA.  

The Court, however, ultimately rejected this lower standard and, instead ruled that the ADA prohibits discrimination “because of” an employee’s age or disability, meaning that the ADA prohibits discrimination that is a “but-for’ cause of the employer’s adverse decision.”

Seven judges disagreed with the majority's interpretation in three separate partial dissents. Judge Eric Clay, summarized these sentiments by noting that the majority failed to accomplish the court's original goal of lining up with the prevailing legal opinion across the country who have accepted the "motivating factor" jury instruction for proving ADA claims.

This distinction is significant for employers, as noted by Judge Clay's dissenting opinion: 

Imagine that a disabled plaintiff seeks remedy under the ADA following the termination of her employment, which she believes was on the basis of her disability. The plaintiff admits evidence that the employer wished to terminate her because the employer believed her disability was troublesome to its business; but the employer admits other evidence that the plaintiff’s work was less than exemplary. Under a motivating-factor standard, the plaintiff could easily satisfy her causation burden by presenting evidence that her disability provided one of the reasons for her termination. However, under the but-for standard, the plaintiff is obligated to prove that without the disability, her allegedly poor performance would not have been enough to motivate her employer to terminate her. In practice, a plaintiff will rarely discover objective evidence of her employer’s state of mind or internal motivations that would satisfy this extremely heavy burden.

* * * 

Employing a but-for causation standard for ADA claims imposes a burden upon individuals in seeking to vindicate disability-based discrimination that is greater than the burden intended by Congress.

Take-aways for Employers

Certainly reversing the "sole reason" standard was a blow to employers when it comes to defending against claims under the ADA. But it remains to be seen whether the dissenting judges' fears will prove the “but for” standard makes it materially more difficult for employees to establish a claim under the ADA.

The best advice for employers, however, was perfectly articulated in Jon Hyman's blog post; employers "are infinitely better off making reasonable accommodations and avoiding disability discrimination claims ..." Can't argue with that conclusion.  

Will Employers Face a More Employee-Friendly ADA Litigation Landscape in the Sixth Circuit? Probably.

YellowQuestionMark.jpgThis blog previously noted that the Sixth Circuit (the federal circuit that includes Michigan, Ohio, Kentucky, and Tennessee) would likely change its standard for analyzing claims under the Americans with Disabilities Act (ADA) from a stricter standard to a less demanding standard that favors employees. Americans with Disabilities Act: The Times They are (likely) a Changin.' 

The first step towards making that change was recently taken by the Sixth Circuit when it granted a certain procedural hearing in June (PDF).

Specifically, in Lewis v Humboldt Acquisition Corp., Susan Lewis lost her ADA claim at the trial level. On appeal, she argued that the trial court should have instructed the jury that her disability need only be a "motivating factor" for her termination rather than the "sole factor" for the adverse employment action. But this "motivating factor" standard is not the law in the Sixth Circuit.

Instead, the current law in the Sixth Circuit requires that a plaintiff must prove that the plaintiff's disability was the "sole reason" for the adverse employment action (see the 1996 court opinion Monette v. Elec. Data Sys. Corp). Based on Sixth Circuit appellate procedure, this prior opinion must be followed unless reversed. That reversal, however, could only occur through a procedural hearing referred to as an "en banc" hearing.

While such a hearing is the exception, and a rare one at that, the en banc rehearing was granted, which means all the Sixth Circuit appellate judges will hear the case and decide if its prior precedent (Monette) should be reversed. It is anticipated that this will happen.

If that happens, the Sixth Circuit's current "sole reason" standard will be overruled and likely be replaced with the "motivating factor" standard. Under the "motivating factor" standard a plaintiff is only required to prove his or her disability was a motivating factor of the adverse employment action rather than the "sole reason" in order to make successfully state an ADA claim. 

The Take Away

If (when) the Sixth Circuit reverses its "sole reason" standard in favor of the "motivating factor" standard for making an ADA claim, employers will certainly face a more employee-friendly litigation landscape in the Sixth Circuit. This is especially true because employers will have less opportunity to rely on disposing of a case through a summary judgment motion under the more lenient standard. But it will also mean that the Sixth Circuit would be in the majority (at least 8 other federal circuits follow the "motivating factor" standard) rather than in the minority.  

It is also worth noting that employers in Michigan have essentially operated under the less demanding "motivating factor" standard when it comes to Michigan's state law equivalent to the ADA. That state law being the Persons with Disabilities Civil Rights Act (PDCRA). Under the PDCRA, Michigan courts have generally required an individual to show that unlawful discrimination was at least a "motivating factor" in the employer's actions. Hazle v. Ford Motor Co., 464 Mich. 456, 462 (2001).

We will continue to monitor this case, but please subscribe to this Blog for updates on the anticipated changes discussed above. 

Another Perspective on the ADA: Assisting Qualified Individuals to Help Employers Remain Competitive

Ascent.jpgOn May 24, 2011, the Americans with Disabilities Act Amendments went into effect, which were the result of the 2008 ADA Amendments Act signed into law by President Bush. 

Without question, the ADA Amendments make it easier for individuals to establish coverage. In fact, Congress overturned several U.S. Supreme Court decisions that had narrowly interpreted the definition of "disability," resulting in a denial of protection for many individuals with impairments such as cancer, diabetes, and epilepsy.

But this broader coverage should not be viewed as a negative. In this regard, we had the opportunity to interview Adam Kaplan of Big Tent Jobs, LLC, to discuss this topic. Big Tent Jobs is a Michigan-based company that focuses on placing individuals with disabilities into positions with leading employers. Mr. Kaplan’s insight in working with such individuals is considerable. It is, however, definitely exceeded by his passion for helping these individuals find opportunities to positively contribute in the workplace.

  • Your company is Big Tent Jobs. Explain what your company does and why were you motivated to develop this business.

Big Tent Jobs, LLC places ready to work individuals with disabilities at leading companies. Our firm matches the best "specially-abled" candidates with hiring managers who are committed to meeting and exceeding their business and diversity objectives. In doing so, our company aims to right the injustice that millions of talented individuals with disabilities are unemployed or underemployed. We work with candidates to find skilled, well-paying jobs that allow them to showcase their talents and strengths.

It is important to remember that in the 20+ years since the ADA was signed, the rate of individuals with disabilities in the workforce has not markedly improved. In fact, studies have shown that during parts of the current recession, working-age individuals with disabilities have lost jobs at rates up to three times as high as non-disabled individuals. Big Tent is focused on reversing this trend for the benefit of individuals and prospective employers. 

Our candidates include hearing and visually impaired individuals, as well as individuals who use wheelchairs and those who have emotional disabilities. They include engineers, lawyers, accountants and IT personnel. What stands out most about the people we work with is their dedication to use their expertise to be productive citizens and desire to secure the job that they need and deserve.

  • An important component under the Americans with Disability Act is the interactive process that both the employee and employer should engage in to determine an appropriate, reasonable accommodation. Do you have any general recommendations for employers and individuals who may require a reasonable accommodation when it comes to addressing such accommodations?

Yes - disclose, disclose, disclose! Disclosure by individuals is the best way to go and employers have a responsibility to create the work environment that makes disclosure a good option for someone with a hidden disability.

It is not as hard as it might seem to accommodate a worker with a special need. Since current or new employees with disabilities may have lived with their disabilities for a long time, or all their lives, they usually know what accommodations they need and may already have what is needed, such as a modified keyboard or adapted handheld device so that an employer might not even need to spend any money.

In the instances where an employer must invest in an accommodation, many accommodations are paid by governmental agencies, although budgetary constraints will make this option less and less of a possibility.

Finally, there are tax credits and other incentives for making accommodations that are out there and discoverable with a minimum amount of research.

  • What do you see as a challenging issue for employees and employers when it comes to reasonable accommodations in the workplace?

The biggest challenge is one of perception - an emotional one - that someone with a disability is getting "special treatment" by the employer. The key is having open conversations about the accommodations and how they are designed to put the person with a disability on a level playing field with that person's colleagues to enable the person to do the job. And if extra help is needed to determine what is an appropriate accommodation there are free resources like the Job Accommodation Network in addition to attorneys who focus on ADA issues. 

  • What point would you like employers to take away when it comes to hiring employees who may need a workplace accommodation due to a disability?

Accommodating people with disabilities is EASY if both parties use honest, clear communication and exercise common sense. Fifteen to twenty percent of the working-age population today has a disability and over time 1 in 4 working people will acquire one. We owe it to our friends, colleagues and ourselves to do everything we can to fully integrate these able workers into our companies.

  • Any last words?

Hire talented candidates with disabilities now! For an example of the candidates we have to offer, watch the upcoming show "A Wider World" on WTVS Detroit on August 16, 2011 at 5.30pm where three such candidates will be profiled. 

Additional Considerations

Mr. Kaplan's observations about the importance of communication between the employer and employee cannot be emphasized enough. This is especially true for employers because under the ADA unlawful discrimination specifically includes "not making reasonable accommodations [for a] qualified individual with a disability..." 42 USC 12112(b)(5)(A). For information about responding to or making a request for a reasonable accommodation see our prior post: A Road Map for Responding to Requests for Accommodations under the Americans with Disability Act.

Michigan Lawmakers Continue to Address Medical Marijuana Law Questions

YellowQuestionMark.jpgThe Detroit Free Press (by Dawson Bell) reported that Michigan's Attorney General, Bill Schuette, and a coalition of lawmakers and prosecutors are calling Michigan's medical marijuana law so poorly drafted as to be unworkable.

The focus of this criticism in large part is on the legality of medical marijuana dispensaries, the definition of a "locked facility," and the nature of the doctor-patient relationship with respect to obtaining authorization for a medical marijuana card.

What is not discussed, but is equally important, are issues at the intersection of employment and use of medical marijuana.
As previously discussed, a Michigan federal district court ruled in favor of an employer, Walmart, when it discharged an employee who was also an authorized medical marijuana patient. 

While these issues are certainly important, it is equally important to employers and employees for lawmakers to address the use of medical marijuana off duty or during nonworking hours.

As previously discussed, a Michigan federal district court ruled in favor of an employer in a case involving Michigan's medical marijuana statute. In that case, Walmart discharged Mr. Cassia after he tested positive for marijuana use. At the time of the drug test, Mr. Cassia was an authorized medical marijuana user because of his sinus cancer and a brain tumor. He did not use marijuana while working. The case, however, is presently on appeal. 

That case only challenged the termination on the basis that it violated an implied right to use marijuana for medicinal purposes during off-duty hours as a violation of Michigan's public policy (as set forth in the Michigan Medical Marihuana statute). It did not involve the Americans with Disability Act or Michigan's state law equivalent, the Persons with Disabilities Civil Rights Act, MCL § 37.1101.

Both of these statutes involve providing "reasonable accommodations" in order to provide employment opportunities for persons with disabilities. Certainly "toking up" on the job would not be a reasonable accommodation. But the real uncertainty for employees and employers is how to treat drug test that are positive for marijuana by-products. Such products may show up weeks after the initial ingestion.

On that issue, the Michigan Supreme Court expressly held that (at least certain) by-products are not an illegal (schedule 1) drug in the context of operating a motor vehicle. Notably, the Court referenced the Medical Marihauna Act and highlighted that without its limitation, "individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired ..." Further, the Court noted that at the time the issue was considered, no federal courts had concluded that by-products were "a controlled substance."

So what does this mean for Michigan employers and employees? That is a question Michigan lawmakers should certainly answer for the benefit of both employers and employees. Otherwise both are left uncertain as to their rights and responsibilities when it comes to using medical marijuana and the employment relationship. 

A Road Map for Responding to Requests for Accommodations under the Americans with Disability Act

Road Map.jpgA common issue under the Americans with Disabilities Act concerns asking for and responding to a request for a reasonable accommodation.

It is important for employers to understand their obligations in responding to such a request because under the ADA unlawful discrimination specifically includes "not making reasonable accommodations [for a] qualified individual with a disability..." 42 USC 12112(b)(5)(A).

Making and Responding to a Request for a Reasonable Accommodation

  1. An employee generally has the initial burden of putting the employer on notice that deficiencies in his or her performance are related to an ADA disability, proposing an accommodation, and showing that that accommodation is objectively reasonable. But this general rule has exceptions: Employers have been required to initiate the interactive process even if the employee does not request accommodation where the employee’s disability and its adverse impact on job performance are obvious. Brady v Wal-Mart Stores, Inc (2008) (Employee had cerebral palsy, which manifested itself in noticeably slower walking and speech).
  2. The EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship provides that a: "... modification or adjustment is 'reasonable' if it 'seems reasonable on its face, i.e., ordinarily or in the run of cases;' this means it is 'reasonable' if it appears to be 'feasible' or 'plausible.' An accommodation also must be effective in meeting the needs of the individual." 
  3. To determine the appropriate reasonable accommodation it may be necessary for the employer and employee to engage in an informal, interactive process. 29 C.F.R. § 1630.2(o)(3) (2010). The EEOC Regulations provide that this process should focus on: 
    • Analyzing the particular job involved and determine its purpose and essential functions;
    • Consulting with the employee with a disability to determine the precise job-related limitations imposed by the employee's disability and how those limitations could be overcome with a reasonable accommodation;
    • Identifying potential accommodations and assessing the effectiveness each would have in enabling the employee to perform the essential functions of the position; and
    • Considering the preference of the employee to be accommodated and selecting and implement the accommodation that is most appropriate for both the employee and the employer.
  4. If the plaintiff establishes that a reasonable accommodation is possible, the employer bears the burden of proving how the accommodation would cause an undue hardship on the operation of the business. 42 U.S.C. § 12112(b)(5)(A). The ADA defines "undue hardship" to mean "an action requiring significant difficulty or expense, when considered in light of the [following] factors": 
    • The nature and cost of the accommodation needed;
    • The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
    • The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
    • The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. 42 U.S.C. § 12111(10). 
  5. Employers should carefully and critically assess whether an accommodation is an "undue hardship  because a court will often engage in an individualized inquiry to ensure that the employer's justifications "reflect a well-informed judgment grounded in a careful and open-minded weighing of the risks and alternatives . . .". Johnson v. City of Pontiac, (E.D. Mich. 2007). Also, courts will reject an employer's "undue hardship" argument if it is not supported with specific facts. See Smith v. Henderson, (6th Cir. 2004) (employer failed to set forth "specific facts indisputably demonstrating that ... the accommodation would have resulted in 'significant difficulty or expense.").

While these topics will be an important starting point for employees and employers to meaningfully participate in the interactive accommodation process under the ADA, any such issues should be addressed with competent legal counsel. 

Medical Marijuana & Employment Law: Unanswered Questions For Employers and Employees

Marijuana Leaf.jpgRecently a Michigan federal court judge dismissed a case brought by a former Wal-Mart employee of five years and associate of the year in 2008, after he was terminated when a drug test was positive for marihuana. (Reported by Larry Gabriel of the Metrotimes). Mr. Casias had previously registered under Michigan's statute to use marihuana in connection with his sinus cancer and a brain tumor (Michigan spells marijuana with an "h" rather than a "j"). 

Following his termination, Mr. Casias sued Wal-Mart claiming he was wrongfully terminated in violation of an implied right to use marihuana for medicinal purposes during off-duty hours and in violation of public policy as set forth in the Michigan Medical Marihuana statute. The court disagreed and concluded that the statute protects against prosecution or other potential adverse state action but did not create "a new protected employee class" insulated from private sector disciplinary actions. The Casias case is on appeal to the Sixth Circuit.  

Does the Americans with Disability Act Allow for an Employee's Use of Medical Marihuana? 

Mr. Casias did not challenge his discharge under the Americans with Disabilities Act (ADA) as a failure to accommodate his disability. And an ADA claim would have made for an interesting analysis as to whether a violation of the ADA occurred. Consider the following: 

  1. Certainly under the ADA anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use. Further, the ADA does not prevent employers from testing applicants or employees for current illegal drug use, or from making employment decisions based on verifiable results.
  2. But under state law, Mr. Casias was not using a drug illegally. And while under federal law, marihuana is an illegal schedule 1 drug, the U.S. Department of Justice announced in 2009 that it did not consider state legalized medical marihuana use a crime to be prosecuted. So does this change the analysis? Probably not - a schedule 1 drug is a schedule 1 drug, whether there is enforcement or not.
  3. But I suspect that Mr. Casias was not fired per se for using a schedule 1 drug. Rather he was fired for having a by-product associated with a schedule 1 drug that showed up in his drug test. As noted in an earlier post, Michigan's highest (pun intended) court in People v. Feezel, (2010) expressly held that (at least certain) by-products are not a schedule 1 drug in the context of operating a motor vehicle. In the Feezel case, the Michigan Supreme Court reversed a criminal defendant's conviction for operating a motor vehicle with the presence of a schedule 1 controlled substance in his body, causing death.
  4. Notably, the Feezel Court referenced the Medical Marihauna Act and highlighted that without its limitation, "individuals who use marijuana for medicinal purposes will be prohibited from driving long after the person is no longer impaired ..." Further, Feezel noted that at the time the issue was considered, no federal courts had concluded that by-products were "a controlled substance." 

So returning to the ADA, as a reasonable accommodation, what if Mr. Cassia asked to be exempted from drug test screening for marihuana "by-products" only as opposed to actual marihuana or other illegal substances? 

Also, assuming marihuana is not addictive, is the preceding accommodation made more compelling in light of the risks involved with addiction to prescription pain medication? For example, the Washington Post reported a 2010 government substance abuse study found substance abuse treatment admissions involving prescription narcotics increased more than fourfold between 1998 and 2008, from 2.2 to 9.8 percent. 

Does Michigan's Persons with Disability Act Allow for an Employee's Use of Medical Marihuana? 

Also, how would the result have changed if Mr. Cassias filed suit under Michigan's Persons with Disabilities Civil Rights Act, MCL § 37.1101, which is the state equivalent to the ADA. Under Michigan's Persons with Disability Act, there is no provision defining "reasonable accommodation" and the only limitation on an accommodation is the requirement that the accommodation may not impose an "undue hardship" on the employer.

There is an argument to be made that nothing in the text of Michigan's Persons with Disability Act to support the proposition that a requested accommodation is unreasonable if it involves off-duty conduct by the employee away from the job site that is expressly protected from criminal sanction under state law but is criminal under federal law. Conversely, there is nothing in the text of the statute to support the proposition that an employee's accommodation to use an illegal (under federal law) schedule 1 drug is a reasonable accommodation.  

It should be noted that the few decisions outside of Michigan that have addressed the issue of whether an employer must accommodate an employee's use of marihuana for medicinal purposes have sided in favor of the employer. See e.g., Ross v Ragingware Telecommunications, Inc. (California 2008) (Plaintiff did not state a claim under the state's employment discrimination laws based on the employer's refusal to accommodate use of medical marijuana); Johnson v Columbia Falls Aluminum, Co., LLC (Montana 2009) (employer's failure to accommodate use of medical marijuana did not violate Montana's Human Rights Act)

Closing Thoughts

The above issues have simply not been addressed in Michigan: Cassias was the first case to address the interplay of Michigan's medical marihuana statute and the employment relationship, but it did not involve any ADA or Michigan Persons with Disabilities Civil Rights Act claims. Therefore, trying to offer a meaningful discussion and analysis on these issues was probably best summed up by Yogi Berra: "It's tough to make predictions, especially about the future." For all I know, a Judge hearing these legal theories may wonder if I was high in coming up with them in the first place (I wasn't ... really).

If I was a betting man, based on decisions from outside of Michigan addressing the interplay of employment and use of medical marijuana, I think employers have the upper hand. Still, there are a number of issues that employers should continue to monitor. And in the meantime, if you're a certified medical marihuana patient, "smoke 'em if you got 'em" but you may not have a job afterwards.  

Questions About the ADA Amendments Answered by EEOC Associate Legal Counsel

Questions.jpgThis past week at Michigan's 36th Annual Labor and Employment Law Symposium, I attended a break-out session where Peggy Mastroianni, Associate Legal Counsel for the the U.S. Equal Employment Opportunity Commission (EEOC) answered questions and discussed the final regulations to implement the ADA Amendments Act. The ADA Amendments go into effect on May 24, 2011. 

These Amendments were the result of the ADA Amendments Act of 2008 signed into law by President Bush and became effective on January 1, 2009. The final regulations apply to all private and state and local government employers with 15 or more employees, employment agencies, labor organizations (unions), and joint labor-management committees. 

A few highlights from Ms. Mastroianni's informative presentation:

  • An area the EEOC will especially be focusing on is pursuing the inflexible application of organizational policies in lieu of engaging in an individualized assessments of an employee with a disability. She gave the recent example of Supervalue, Inc. American Drug Stores LLC, and Jewel Food Stores, Inc. agreeing to resolve the EEOC's disability discrimination lawsuit arising out of the employer's policy of terminating employees with disabilities at the end of medical leaves of absence without consideration of bringing them back to work with reasonable accommodations. Under the settlement the employer agreed to pay $3.2 million and engage in extensive remedial relief. A similar suit is pending in District Court in Grand Rapids (EEOC v. IPC Print Services, Inc., Case No. 10-cv-886) where the EEOC alleges that an employee sought to continue working part-time while he completed treatment for cancer, but was discharged when he exceeded the maximum hours of leave allowed under the employer's policy.
  • The ADA Amendments without question make it easier for individuals to establish coverage. Congress overturned several U.S. Supreme Court decisions that had narrowly interpreted the definition of "disability,"  resulting in a denial of protection for many individuals with impairments such as cancer, diabetes, and epilepsy.   
  • As to impairments that are episodic or in remission, the ADA Amendments specifically provide that such an impairment would meet the definition of disability if it would substantially limit a major life activity when active. An example would be cancer that is in remission or a chronic impairment with symptoms or effects that are episodic such as epilepsy. Further, the relevant focus as to whether an episodic impairment is a disability is what that condition would be during a flare-up.  
  • With the single exception of eyeglasses or contacts, the determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids (also overturning a prior U.S. Supreme Court Opinion). 

Free ADA Amendment Resources

The ADA Amendments will certainly bring new challenges and opportunities for employers and individuals. The following links to free ADA Amendment Act resources are a good starting point for responding to both:  

In addition to these resources, feel free to contact Jason Shinn of E-Business Counsel for additional insight from Ms. Mastroianni's presentation or about the the ADA Amendments in general.  

Americans with Disabilities Act: The Times They are (likely) a Changin'

Changes Ahead.jpgA panel of the Sixth Circuit Court of Appeals (the federal circuit that includes Michigan, Ohio, Kentucky, and Tennessee) recently gave employers the heads up that The Times They are a Changin,' or at least should be, when it comes to the standard for successfully making a claim under the Americans with Disabilities Act (ADA).

Specifically, in a recent case, plaintiff Susan Lewis lost her ADA claim at the trial level. On appeal, she argued that the trial court should have instructed the jury that her disability need only be a "motivating factor" for her termination rather than the "sole" factor for the adverse employment action.   

In support of her position, the ADA plainly prohibits discrimination "on the basis of" disability. 42 USC §12112(a). But the Sixth Circuit has previously determined this provision to mean that a plaintiff must prove that the plaintiff's disability was the "sole reason" for the adverse employment action under a 1996 court opinion (Monette v. Elec. Data Sys. Corp). And based on Sixth Circuit procedure, this prior opinion must be followed, unless a certain rehearing (referred to as an "en banc" hearing) takes place.   

The Court of Appeals panel in Lewis, however,  questioned in multiple instances whether the "sole reason" standard should continue to be "good law" because that standard conflicts with the plain language of the statute. Further, eight other circuits (there are 13 circuits in total) apply a "motivating factor" test rather than the "sole reason" standard. Under the "motivating factor" standard a plaintiff is only required to prove his or her disability was a motivating factor of the adverse employment action rather than the "sole reason" in order to make a successful ADA claim.

A concurring opinion by Judge Griffin summed up the Court's obvious disdain of the "sole reason" standard and signaled what should happen next:   

I write separately because our precedent on this issue of exceptional importance is misguided and contrary to the overwhelming authority of our sister circuits. Accordingly, the question appears appropriate for rehearing en banc. 

An en banc hearing would give the Sixth Circuit Court of Appeals the procedural opportunity to overrule the "sole reason" standard and follow the "super majority" of the remaining federal circuits.

The Take Away

Similar to Mr. Dylan's famous observation that "You don't need a weatherman to know which way the wind blows" (Subterranean Homesick Blues, on Bringing It All Back Home), you don't need to be a legal scholar to know that the Sixth Circuit's current "sole reason" standard will likely be overruled as soon as the procedural opportunity is presented. While employers may not like this change, Judge Griffin is absolutely correct in noting that the "sole reason" standard is contrary to the plain language of the statute and as further evidenced by the overwhelming majority of federal circuits to reject it in favor of the "motivating factor" standard. Under the "motivating factor" standard, ADA discrimination need not be the sole reason for the adverse employment decision. It must, however, actually play a role in the employer's decision making process and have a determinative influence on the outcome.