This 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:
- Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008
- Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008
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.