Ms. Pate Marlin

ADA Compliance

The New ADA: Hotels face new compliance challenges regarding disability-related issues and accommodation requests

By Lesley Pate Marlin, Attorney, Venable LLP

Co-authored by Robert G. Ames, Esq., Partner, Venable LLP

With the enactment of the ADA Amendments Act of 2008 (“ADAAA”) and the corresponding regulations recently promulgated by the Equal Employment Opportunity Commission (“EEOC”), the legal landscape under the Americans with Disabilities Act (“ADA”) has changed dramatically and will continue to do so with court decisions interpreting and applying the amended law. As a result, employers face new compliance challenges and must re-examine how they address disability-related issues and accommodation requests in order to minimize the risk of enforcement actions and/or litigation.

I. Overview Of The ADA And The ADAAA

The ADA, which applies to employers with 15 or more employees, prohibits discrimination against qualified employees or applicants with a disability because of the disability and requires employers to provide reasonable accommodations to such individuals to assist them in carrying out the essential functions of their jobs unless doing so would cause an undue hardship to the operations of the employer’s business. “Disability” is defined as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual; (2) a record of such impairment; or (3) being regarding as having such an impairment.

When the ADAAA took effect on January 1, 2009, it overturned a series of court decisions that had effectively narrowed the scope of the ADA by limiting the physical and mental conditions that qualified as disabilities. The ADAAA sought to ensure that individuals with disabilities are, in fact, afforded the protections allegedly intended by Congress when it originally enacted the ADA.

To that end, the ADAAA maintained the three-prong definition of “disability” but changed the analysis and interpretation of the statutory terms. Perhaps most significantly, employers can no longer consider the ameliorative effects of mitigating measures, with the exception of common eyeglasses or contact lenses, in determining whether an individual has a disability within the meaning of the statute. The ADAAA rejected the definition of “substantially limits” established by the Supreme Court and the EEOC as too strict and then directed the EEOC to issue revised regulations consistent with Congress’ intent to provide broad protection for disabled employees. It expanded the definition of “major life activities” through an illustrative, non-exhaustive list of activities and major bodily functions that qualify. It clarified that an impairment that is episodic or in remission, such as epilepsy or cancer, constitutes a disability if it would substantially limit a major life activity when active.

In addition, the ADAAA clarified that “regarded as” means that an individual has been subjected to prohibited action based on actual or perceived physical or mental impairment. An individual is no longer required to show that the employer believed the impairment was substantially limiting to meet the “regarded as” prong.

II. EEOC Regulations Implementing The ADAAA

On May 24, 2011, the EEOC’s regulations implementing the ADAAA took effect. As directed by Congress, the EEOC undertook the regulation revision back in September 2009. During the public comment period on the proposed regulations, the EEOC and the Department of Justice’s Civil Rights Division held four full-day town hall sessions to obtain input from employers and disability rights organizations. By the close of the public comment period, the EEOC had received more than 600 comments. The EEOC then spent more than a year reviewing the comments and revising the regulations to put them in final format.

In response to the comments it received, the EEOC revised the proposed regulations in several significant respects. Key differences in the final regulations include:

• Adding that major bodily functions include the operation of an individual organ within the body;

• Deleting certain examples and moving other examples to the appendix;

• Delineating nine rules of construction that apply when determining whether an impairment substantially limits an individual in a major life activity;

• Retaining the list of impairments that will be consistently found to be disabilities but clarifying that individualized assessments are still required;

• Deleting the list of impairments that might be considered to be disabilities as well as the list of impairments that normally would not be considered disabilities;

• Deleting the reference to “surgical intervention” as a mitigating measure that generally cannot be considered in determining whether an impairment substantially limits a major life activity;

• Adding psychotherapy, behavioral therapy, and physical therapy to the non-exhaustive list of examples of mitigating measures;

• Deleting the proposed “type of work” standard and retaining the existing “class of jobs or broad range of jobs” standard for the major life activity of working;

• Restoring the concept of “condition, manner, and duration” in determining whether an impairment substantially limits a major life activity, but noting that these concepts may not be needed for impairments that could easily be deemed to be disabilities; and

• Deleting the application of “regarded as” to symptoms of an impairment.

III. Judicial Interpretation Of The ADAAA

Because of the lag time associated with the administrative process, the courts have only recently started issuing decisions under the new ADAAA standards. See Hoffman v. Carefirst of Fort Wayne, Inc., -- F. Supp. 2d --, No. 1:09-CV-251, 2010 WL 3522573 (N.D. Ind. Aug. 31, 2010) (finding that cancer in remission is a disability within the meaning of the ADA and denying employer’s motion for summary judgment on failure to accommodate claim).

IV. Impact Of The ADA Changes

A. Increased Litigation Of Disability Discrimination And Failure To Accommodate Claims

The changes made by the ADAAA have been expected to substantially increase the number of disability discrimination charges and lawsuits. The statistics available thus far bear out this expectation. Disability discrimination charges at the EEOC have posted the steepest rate of increase among the various kinds of charges in each of the past two fiscal years.

The elements of disability discrimination claims remain the same. To prevail on a failure to accommodate claim, an employee must show: (1) he is a qualified individual with a disability; (2) the employer had notice of his disability; (3) there was some reasonable accommodation denied to him; and (4) such accommodation would have enabled him to perform the essential functions of his job. To prevail on a disparate treatment claim, an employee must show: (1) he had a disability within the meaning of the ADA; (2) he was qualified for the position with or without a reasonable accommodation; and (3) he suffered an adverse employment action because of his disability. Litigation of disability discrimination claims prior to the enactment of the ADAAA typically focused on the threshold issue of disability. Issues such as reasonable accommodation, undue hardship, direct threats, qualifications standards, medical inquires and examinations, which have thus far been under-developed in the case law, are now likely to become the focus of litigation. Only time will tell whether more and more ADA cases will proceed to trial instead of being dismissed at summary judgment. What is clear, however, is that the law under the ADA will continue to change and develop.

Indeed, the EEOC appears to be trying to shape ADAAA law and create precedent by ramping up its enforcement efforts. The EEOC has increasingly filed litigation under the ADA. See EEOC V. Eckerd Corp., N.D. Ga. (failure to accommodate arthritis); EEOC v. Fisher, Collins & Cater, D. Md. (layoff of two employees who had diabetes and hypertension); EEOC v. IPC Print Services, W.D. Mich. (fired employee with cancer instead of providing accommodation of part-time work); EEOC v. Innershore Enterprises, Inc., D. Md. (employee fired after it became know she was HIV-positive); EEOC v. United Airlines, N.D. Ca. (failure to accommodate a class of employees with disabilities by providing job transfers).

The EEOC has also been challenging employment policies, procedures, or practices that it contends perpetuate systemic discrimination against disabled individuals. The EEOC maintains, for example, that inflexible policies or practices requiring either automatic termination after a specified period of absence from work or “100% healed” to be able to return to work violate the ADA. In August 2009, the EEOC filed a class action against UPS in federal court in Illinois, alleging that UPS unlawfully rejected extensions of medical leave as a reasonable accommodation for disabled employees. The case remains on-going. The EEOC has pursued similar lawsuits against Sears, Roebuck & Co., as well as supermarket giants SUPERVALUE INC., American Drug Stores, LLC, and Jewel Food Stores, Inc. (collectively, “Jewel-Osco”). According to the EEOC, these employers maintained rigid workers’ compensation or medical leave of absence policies that terminated employees instead of providing them with reasonable accommodations. The Sears litigation resulted in a $6,200,000 settlement, which is the largest ADA settlement in a single lawsuit in EEOC history, and the Jewel-Osco litigation resulted in a $3,200,000 settlement.

B. Expanded Reach Of The ADA Shifts Focus To Accommodation Requests And The Interactive Process

By expanding the definition of disability, the ADAAA extended reach of the ADA to cover more employees than ever before. As a result, employers are likely to encounter more accommodation requests, and their focus should now be the interactive process and the provision of reasonable accommodations, instead of the threshold issue of whether the employee has a qualifying disability. Although the definitions of “reasonable accommodation” and “undue hardship” have not changed, reasonable accommodation issues are expected to become more complicated. Reasonable accommodations may include: paid or unpaid leave; adjustments to work schedules; job restructuring and/or redistribution of marginal functions; altering when or how an essential function is performed; providing or modifying equipment or devices; providing readily accessible facilities; and reassignment to another position. Employers should anticipate that court decisions in the years to come will further delineate the applicable standards for “reasonable accommodation” and “undue hardship.”

V. Recommendations For Employers

Because of the shifting emphasis described above, employers should review their ADA policies, procedures, and practices, especially as they relate to hiring, reasonable accommodation, medical leaves of absence, and workers’ compensation. Employers should also review job descriptions to make sure that they adequately and accurately describe the essential functions of the position.

Employers should develop and implement a process for handling reasonable accommodation requests, taking extra caution to ensure legal compliance. It should include specific steps for documentation of the interactive process, specifically any accommodation requested by an employee, the reason for the request, other potential accommodations, all discussions with the employee regarding accommodation, any accommodation made, the reason for the accommodation, and any length or limitations on the accommodation. Forms and information requested also needs to be compliant with the Genetic Information Nondiscrimination Act (“GINA”).

The EEOC has published policy guidance on the reasonable accommodation process, and additional guidance and assistance is available from the Job Accommodation Network (“JAN”). JAN provides employers with free individualized worksite accommodation consultation and training.

Lastly, and unarguably most importantly, employers should train supervisors and managers at all levels on the expanded scope of the ADA, as well as how to recognize and respond to requests for accommodations or other situations where accommodations may be appropriate.

This article was co-authored by Robert Ames. For more than thirty years, Robert G. Ames has represented public and private sector employers with regard to all aspects of labor relations and employment law. He is experienced as a chief negotiator and strategist in collective bargaining negotiations, as well as lead counsel in labor arbitrations and employment discrimination litigation. Mr. Ames has specialized over the years counseling clients on compliance with the myriad federal and state employment laws, including Title VII, the Americans with Disabilities Act (ADA) (Title I and Title III), the Fair Labor Standards Act (FLSA), and the National Labor Relations Act (NLRA).

Lesley Pate Marlin concentrates her practice at Venable LLP on labor and employment counseling and litigation where she represents employers in a variety of industries, including hospitality, hotels, restaurants, and entertainment. She conducts training for employers on equal employment opportunity compliance, sexual harassment, disability or religious accommodation, FMLA, performance reviews, and employment law developments. Ms. Marlin defends employers in federal and state courts, as well as in arbitration and before administrative agencies. Ms. Marlin is actively involved in the legal profession and the community. For more information, please visit http://www.venable.com/lesley-pate-marlin Ms. Pate Marlin can be contacted at 202-344-8033 or lpmarlin@venable.com Extended Bio...

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