We are going to be recording this session. So it has, recording has started. I ask Barry if you can click the send current page one more time to make sure were all set. Okay, great thank you. Thank you, Barry.
Well, great it''s the top of the hour at this time, and so I''m going to go ahead and get us started as we have a lot of information for our session today. I''m going to go ahead and one; welcome everybody to the Great Lakes ADA Centers legal webinar. We are part of a national network of ADA centers also known as the Disability and Business Technical Assistance Centers. We are regionally based and you can reach us through our national website for this program, which is www.ADA-audio.org. Our session today is going to focus on performance and contact issues as well as the Americans with Disabilities Act Amendments Act, ADAAA (another acronym for all of us to get used to). I''m going to go ahead and introduce our speakers and give you an opportunity then to hear from them. So, first today we will have joining us Sharon Rennert, who is senior attorney advisor in the Americans with Disabilities Act Division of the Office of Legal Counsel within the Equal Employment Opportunity Commission. Shes a senior member of that staff joining them in January of 1992. She also has served as the acting Director of the division during 2003. One of her primary responsibilities is developing the commissions policy interpretations of the ADA, and she has worked on every ADA policy guidance issued by the commission to date. She also works on many of the commission''s ADA technical assistance documents, including drafting of fact sheets on tele-work, reasonable accommodation and application to job seekers. She is also key drafter on other documents as well. Prior to the, joining the EEOC, she worked with the American Bar Association''s Commission on Mental and Physical Disability Law, where she directed projects on HIV related legal issues, developing model HIV/Aids confidentiality policies for service providers. And before joining the ABA, she was she was Assistant Director of Government Liaison for the Epilepsy Foundation of America with a concentration on disability rights. She has presented for us many times in our programs, and I think you''ll enjoy what she has to say today as shes an engaging speaker and has good information to provide us. Our second speaker today will be Barry Taylor, also known to us through his presentations in other aspects of this program. He is currently the Legal Advocacy Director at Equip for Equality Incorporated, the Illinois protection and advocacy system, where he supervisors legal services, self advocacy and training programs. He also has overseen many individual and systemic disability discrimination cases, including successful federal ADA suits against the National Board of Medical Examiners, Chicago Police Department, and the Chicago Transit Authority. He is also currently working on a major class action on behalf of people with developmental disabilities living in private institutions who are seeking community services here in the state of Illinois. He is actively involved in a self-advocacy training project which has trained over 23,000 people in its first 8 years on a number of issues. Prior to joining the Equip for Equality, he was director or attorney with the AIDS project, Midwest Regional Office of LAMBDA Legal Defense and Education Funds. Working to advance civil rights of people living with AIDS and HIV, I think that''s where Sharon and him have some commonality in their background and work. And from 1988 to ''93 he was a litigation associate with the Chicago law firm of Peterson and Ross, so he has a varied experience as well. I''m going to go ahead at this time and Im going to turn the microphone over to Sharon Rennert who will begin our presentation today with performance and conduct issues. Go ahead Sharon.
Thank you, Robin and welcome to everybody who is online this afternoon. As Robin indicated, lots and lots of materials, and what we''re going to start with is discussing performance and conduct issues, and how they relate to the Americans with Disabilities Act, the ADA. This presentation is taken from the most recent of EEOCs many disability documents, and for those who have not yet seen it, if you go on the EECO website, EEOC.GOV, on the home page- woops somebody is saying they can''t hear me. Okay. I know I have control down. Let''s adjust -- all right. I have increased what I think is the speaking volume, so hopefully everyone can hear me now. But what I was saying is to get the performance and conduct document, simply go on the EEOC''s website, its under recent items, recent developments, and you can get it. What I am going to do this afternoon is simply to talk about some highlights. There''s no way I''m going through this entire document, too much information in it. But I want to at least draw your attention to certain items to make sure that you know whats there, because some of this is repeated from other documents weve done, but some of it is new stuff, and it definitely is a result of the constant questions we were getting from individuals with disabilities and from employers about performance and conduct issues. Up until the recent enactment of the ADA Amendments Act, no other category of issues, aside from performance and conduct, generated nearly as many questions. And I think this document will become even more important as we go through, you know, when you hear Barry talk about the ADA Amendments Act. Some of these topics, I think are going to become even more relevant. I see there still may be some problems with speaking. I have turned it up as far as it can go. And I think I''m screaming into the microphone, so I hope this is helping, and Ive got the microphone almost right up against my mouth. So with that Barry, if you can go to the next slide, please let''s get underway. Okay. Let''s start with something that may appear really obvious, but when we get into this topic, the first thing I always want to make sure is that typically disability will play no roll in performance or conduct issues, just like, you know, gender and race and ethnic origin, you have good apples, you have bad apples, we have people who struggle, people who are just outstanding employees, and disability like those other characteristics is really irrelevant. So we are really talking about a subgroup where disability may play a role, but the general rule as indicated on the screen is that for the most part, employers are going to approach performance and conduct issues when there''s an employee with a disability involved the same way they approach those issues for everybody else. Next slide. In some cases, an employee''s disability may contribute to performance or conduct problems, and as I''m going to discuss over the next 30 minutes, in those instances very often a simple reasonable accommodation may be all that''s needed to eliminate the problem. We''re going to talk about the role of reasonable accommodation, when there are performance and conduct issues, how that relates to when employers quite rightly need to discipline an employee, but the role of reasonable accommodation here is a very important one. Next slide. In terms of performance, let''s start with performance first. Employers establish job-related requirements, including specific tasks or assignments such as essential and marginal functions. Theyll also establish other job-related requirements they expect employees to fill, such as working with others or serving the public in a professional manner, meeting deadlines. Employers also will establish what we call production standards. I''m going to return to this in a moment. So just note production standards. We''ll define it in a second. Now, once an employer establishes job-related requirements, the next thing an employer has got to establish is how to evaluate how well an employee is fulfilling those requirements. So, are they meeting the requirements? Are they performing essential and marginal functions well? How well is an employee meeting production standards? So let''s get into: what are production standards? Production standards refer to two things. First of all, quantitative standards. Quantitative standards, as the name implies, numerical standards. An employer tells an employee you must do so many of something per week, per quarter, per month, whatever it may be. Numerical standards. Those are very objective, okay? There''s really little problem in telling when weve got a quantitative standard. Qualitative standards are something all together different. Qualitative standards should have an objective element but of course will also have a subjective element. These are when employers evaluate. Think about performance, annual performance reviews. Theyre going to evaluate how well an employee is performing. The bottom line for ADA, an employee with a disability must meet the same production standards as other employees in the same position. There is no second-guessing about an employer''s production standards, employers are free to choose whatever production standards they wish to have. Of course, they want to make sure that they are applying it to all people in the same job, but beyond that, employers get to choose. Next slide. Reasonable accommodation in this context will never require that an employer lower a production standard. Okay? Production standards, kind of like essential functions, we all know employers never have to remove an essential function as a reasonable accommodation, well, same thing with production standards. They do not need to change as a form of reasonable accommodation. Rather, reasonable accommodation is about helping an employee with a disability who, because of the disability, is struggling. It''s to help the person meet the standard in the same way that reasonable accommodation is meant to help an employee performance an essential function. Now supervisors play a really critical role here, and this may seem self-evident, but from what comes through the door at EEOC, I can tell you it apparently is not. Supervisors really play a pivotal role in making sure they are always giving clear guidance to employees, including those who have disabilities, regarding both the quantity and quality of work that must be produced and the timetables for producing it. If the employer and the employee have two different ideas of what is expected of, you know, quantitative requirements, of qualitative requirements, even more, what -- what qualifies to the employer as mediocre work? What qualifies as acceptable? What qualifies as outstanding? These are very important concepts that employers must make sure their employees understand. Next slide. In order to have this discussion, then supervisors need to remember to accurately evaluate the job performance of all employees, and again, that would include employees with disabilities if an employee with a disability is not given an accurate job appraisal, like the year-end evaluation, or just feedback throughout the year, you know, as problems come up, does the supervisor go and say, hey, you missed this deadline, or this work was a bit sloppy, or something wasn''t quite right. If an employee with a disability has no idea directly from a supervisor of any performance problem that puts the employee at a disadvantage. Number one, how do they know to improve performance, but also very important in an ADA context: how does the individual know to request reasonable accommodation? Maybe the employee thinks everything is going along fine and doesnt realize, or hasn''t been able to acknowledge, the disability is having an impact on performance. And it''s that feedback from the supervisor thats really critical here. So that''s what can help generate timely requests for reasonable accommodation. And to the extent that we don''t hold employees with disabilities to the same performance standards, we don''t give them accurate feedback, it may sound kind of funny, but in a way were engaging in disparate treatment. We really are doing something that harms the person with the disability here. Next slide. All right. What should an employer do in this kind of situation? An employer, an employee rather, discloses that she has a disability in response either to receiving a lower performance rating, or the supervisor has raced the issue of a performance problem, and the employee responds to either of those situations, discloses a disability. What should the employer do? Well, we''re not going to keep you guessing long. Next slide. The employer should proceed to give the lower rating. If it''s a performance problem, they should proceed in, again, saying what the problem is, and reiterating that the problem must be corrected. In other words we start with this advice because the fact that an employee reveals a disability or asks for accommodation does not in any way change the fundamental issue, which is there is a reason that there''s a performance problem. There''s a reason that somebody got a lower evaluation, and the objective here is to have those problems corrected. And you really have to reiterate that, the employee has to understand that having the disability is not going to change the fact that a performance problem exists, or that they got a low rating, it''s about where do we go from here. And next slide. An employer can follow up in this situation by asking the employee why the disability plays a role in the performance problem. And can ask whether the employee in disclosing a disability is asking for reasonable accommodation. In other words you don''t leave the disability hanging in midair. You reiterate about the performance problem, but the prudent employer should be following up. You know, why are you raising disability? How do you think it has a role to play here? Are you asking for accommodation by raising disability? And if the person says, no, I''m not asking for accommodation, you are going to document that and move on, and again, just say, well, the performance problem has to be fixed, but if they are asking for accommodation, you are going to launch in to the interactive process to discuss now a request for accommodation. So that in a nutshell, very quickly I know, is sort of where we are with performance standards. But now let''s shift to conduct standards, because ADA approaches this slightly differently. With performance standards employers are really free to establish whatever quantitative and qualitative standards they wish. Really the only requirement is that youre going to apply those standards to all people in the same job. Conduct standards: slightly differ. Well, let''s start first of all with the disability -and this is going to be most situations- the disability will have absolutely no relationship to any conduct problems that might occur. Again, just like with performance, disability will usually be an irrelevant consideration, and the same way that race, religion, gender, et cetera is irrelevant to when conduct standards come up. But you want to make sure that in all cases again -let''s say it''s an obvious disability- we''re not applying different kinds of conduct standards. But what happens when the disability may cause or contribute to the misconduct? Here an employer may discipline the employee. May go ahead, discipline the employee, hold them accountable, even where the disability causes the violation of a conduct rule as long as, as long as, the conduct rule is job related and consistent with business necessity, and of course, other employees are held to the same standard. Now sometimes when people say wait a minute, you know, as an employer I have got to show that this conduct rule is job related and consistent with business necessity? And employers can think, well, how hard is that to do? And that may sound like something very onerous and burdensome, but if we go to the next slide, it''s not, its not. It is just the way the ADA is constructed. Conduct standards are really analyzed the way we analyze qualification standards, and for both qualification and conduct standards employers may have to show, if challenged, that they are job-related consistent with business necessity. But that legal requirement, that technical legal requirement does not prevent employers from developing and enforcing a wide range of conduct rules and standards. As we''re going to see in the next slide, there are already a number of conduct rules that EEOC has acknowledged, and courts have acknowledged that, in effect, these all meet the business necessity standard. The first three bullets that you see about prohibiting violence, threats of violence, stealing, and destruction of property, EEOC long ago said all of these would meet the business necessity standard. But what you have in this document for the first time are what you see in the next two to three bullets. EEOC is acknowledging, and I think it''s common sense, that business necessity obviously would say rules against insubordination towards supervisor managers is inappropriate and will not be tolerated, because youre going to have anarchy in your workplaces. There are fundamental reasons that you can''t have such disrespect between an employee and his or her supervisor or manager. Similarly, employees must not be disrespectful towards your clients, customers, and the public. Again, it''s not that hard to figure out the business necessity behind those kinds of rules. Also, respect between coworkers. You cannot have inappropriate behavior between coworkers. You can''t have a coworker screaming at a colleague. You can''t have them saying malicious and denigrating things about somebody else. You can''t have someone sabotaging somebody else''s work. Those are all very serious problems in any workplace, and of course employers are going to prohibit them. And finally alcohol use and illegal drug use. The ADA itself has all kinds of things to say on this, and this guidance has all kinds of things to say about this. We won''t talk about it this afternoon, because there won''t be time, but there are other kinds of conduct rules, if you look at the document, beyond the ones we just saw on the screen, that really meet the conduct standard. So, wide range of rules, obviously are going to be enforceable because there''s business necessity behind them. But in saying all of this, the EEOC does acknowledge that there are some conduct rules that may be a bit more ambiguous, a little more uncertain, what it is the employer is truly prohibiting? And this is where in the guidance we give, through examples, showing how in certain circumstances an employer might not quite be able to enforce a particular conduct rule. What you see on your screen is what we focus on as an example, and that is a conduct rule that, very broadly, is prohibiting disruptive behavior. Now if this were, you know, we were all sitting in the same room, it would be much easier for me to kind of ask you, you know, what comes to your mind when I say disruptive behavior? And if youre like other audiences that I talk to, we might discover quite a wide range of what you would offer as examples, and that wide range can be a little troubling, because it means not everybody understands. I mean, if you say you don''t steal, people know what stealing is. But disruption, people can have different definitions. So what you see on these screen are factors that EEOC suggests that employers look at when you have a more ambiguous, a more nebulous kind of conduct rule that really isn''t readily understood in the same way by everybody. What happens if disability helps contribute to a violation here? What might we look at? And as you can see, we would say, well, you ought to look at first of all whats the manifestation or symptom of the disability thats affecting the conduct? How frequently does this occur? Whats the nature of the job? Whats the specific conduct at issue? And is there something about the working environment thats significant? And in looking at all of this, then we can kind of try to figure out, is this a disruption standard that is enforceable even where the disability causes the problem, or is it no, the employer in this instance may have to moderate. And the example we use in the conduct guidance is someone who talks to himself, and it''s very unnerving to his colleagues because he''s constantly talking to himself carrying on a dialogue. It is because of a psychiatric disability, but we go through in the end how he is not disrupting anybody. He is not preventing the coworkers from doing their job. He himself is doing his job just fine. We sort of take the factors you see before us. We acknowledge the fact that he does behave a bit differently, but we say he''s not screaming. He''s not yelling. It''s just a fact of how he acts that people around him are a bit uncomfortable with. And we acknowledge the discomfort, but we say you can''t in this instance under the ADA label him as disruptive and discipline him for this action. But of course, we then give another example where we show an employee due to a disability being disruptive, clearly interfering with the ability of coworkers to do their jobs, engaging in behavior that I think common sense people can see why we say in that instance, what is now labeled disruptive would be actionable by an employer. So I definitely hope you will take a look at that. Next slide. What happens when an employer learns about a disability after misconduct has occurred? Well, pretty much it''s similar to what we talked about a few minutes ago with performance problems. If an employee raises a disability when theyre being told about a conduct problem, well, the first thing is what would the employer be doing, what would the punishment be, if you will, if disability were not raised? And if it''s termination, that''s the appropriate discipline for whatever act the employee engaged in. Then there''s really no further dialogue of any kind to have because the person''s employment is over. As long as this is the discipline that would be handed out to anybody, what are you going to talk about? Alright, let''s say disability was involved. But whats going to happen? There''s no point talking about reasonable accommodation, because, remember, reasonable accommodation is always looking forward. Reasonable accommodation is about, okay, we got a problem how moving forward do we try to correct it? Well, there is no going forward here. This person''s relationship with the employer is ending at this point. So, reasonable accommodation can''t be involved here. So there is nothing to talk about. Next slide. But what happens if the punishment is something less than termination? Say a suspension or a warning? Well, now there still is a future between the employer and employed, this person still has a job. So here the discussion can be about, again, as with performance: why does the employee even think the disability is involved? The employer can follow up by asking that question. The employer can ask if the person''s raising disability because in essence they are asking for reasonable accommodation, and if they are asking for reasonable accommodation, then youre going to start the interactive process. So, there is a future here, so there is a discussion to be had at this point. Next slide. Very important to point out something about reasonable accommodation and denials of accommodation. You cannot deny an accommodation as a punishment for a conduct violation or for that matter because there''s poor performance. You cannot use reasonable accommodation, when you are an employer, as a form of punishment. If reasonable accommodation is needed, it is required, you cannot simply take it away, because there is a different problem going on, a performance or conduct issue. Youve got to absolutely address the performance or conduct issue, but you don''t want to use reasonable accommodation as some kind of punishment. You know, when our parents always told us, two wrongs don''t make a right. You know, as an employer you don''t want to violate the ADA here. Next slide. Whether it''s a performance or conduct issue, it is generally going to be inappropriate for employers to focus their discussion on the employee''s disability. From an employer''s perspective, the focus should be on the performance or conduct problem where the persons gone wrong, and what the employer expects them to do to get back on the right track. If you emphasize disability as an employer, you are kind of distracting or detracting from what really is your main point. More than that, more alarming, perhaps from an employer''s perspective is bringing up, for the employer to bring up disability, could risk a regarded-as claim, and as Barrys going to take us through in a few minutes when he gets to the ADA Amendments Act, that''s even more true when the ADA changes as of January 1. So from an employer''s perspective, you want to keep focused on what the problem is. For the employee on the other hand, you really have to think about bringing up your disability when you realize -and it''s really the employee who is going to realize this- I thought I could handle something. I didn''t think my disability was getting in the way. Now I realize that my employer''s pointing out some problems. I know as the employee that it''s related to a disability. Now is the time to speak up as soon as something like this happens where an employer is bringing up problems. Employees with disabilities really want to put it on the table, because if they don''t, as we have been discussing, employers can hold them accountable, and from an employee''s perspective the very worse case scenario is you get to the point of being terminated and suddenly it''s too late to talk about anything (next slide) such as asking for reasonable accommodation. While the ADA permits people with disabilities to ask for reasonable accommodation at anytime during their employment, there is such a thing as asking too late. And so employees with disabilities sometimes, you know, are in a very tough situation. It can be scary. If theres an employee with a disability, youve had a bad experience asking for accommodation before or something about bringing up your disability, understandable why you may be reluctant to bring it up now, but yet, there is a real risk if you do not. Next slide. If an employee has a known disability, okay, it''s already known to the employer. The employer certainly may choose to ask whether the employee needs a reasonable accommodation if there seems to be a logical connection between the disability and the problem. And the guidance we give an example of an employee who has macular degeneration. The employer knows that, and there''s all kinds of performance problems that very reasonably and logically would seem connected with the macular degeneration. Even though it is the employee''s obligation to ask for accommodation, the law certainly permits employers to ask if a reasonable accommodation is needed. For some employers who are leery about using a term like accommodation or raising the ADA, you can simply keep it more general. You know, hey, here is your performance problem, you know, is there something I can do to help you? Is there something- you know, we have got to make a correction, but is there something you think I can do to help you? So thats another way of approaching this issue. I want to kind of finish up in the next couple of minutes talking about attendance and leave issues. There''s a whole section in the guidance about attendance and leave issues, but let''s hit the highlights here. Employees with disabilities must be granted the same access to an employer''s existing leave program as all other employees. I think that one is fairly straightforward (Moving ahead). If an employee with a disability requires leave beyond that provided under the employee''s benefit program, this is where reasonable accommodation would step in. Any leave beyond what is normally provided to all employees that would fall under reasonable accommodation. And as we know, employers must provide leave, except if they can show it would cause undue hardship. And while we''re talking about leave, don''t forget things like modified schedules, those would also fall under this category as well. Next slide. But one of the biggest concerns that many employers have is if they start granting accommodation in the area of modifying schedules or in granting leave that it sometimes seems to them they are exempting employees from the time and attendance requirements that they impose on all other employees, but that''s not what reasonable accommodation is. Time and attendance requirements can still be imposed on people with disabilities. It may be slightly changed, because of a reasonable accommodation, but it''s not a free for all. Next slide. One of the areas that has proven quite problematic has been where individuals have required- have required lots of leave that would fall under a category of being chronic, frequent and unpredictable, and whether it''s tardiness or absences, this can pose a lot of problems for employers. But EEOC makes clear as the courts have made clear that chronic, frequent, and unpredictable tardiness or absences does not have to be tolerated or permitted as a form of reasonable accommodation. People who, who are falling in to this category, are really demonstrating an inability to perform the essential functions of their job, as well as to the extent that leave was ever an appropriate reasonable accommodation, it''s now I think much easier for employers to show undue hardship. But do note, its really got to be all three elements: chronic, frequent and unpredictable. And what the guidance does in giving several examples is to show how if you only meet two out of the three, you may not as an employer have enough to deny someone an accommodation. And we use an example of someone who has maybe six seizures a year. That would require at most, somebody to have six days of leave, only six days of leave per year. Well it''s chronic. It''s unpredictable- you don''t know when the seizures will occur. But it fails the frequency test. It''s just not that frequent. So, that''s an example of how meeting two of the three factors is not going to be enough, its really all of them. About two more slides to go, and then we open it up for questions. To reiterate, courts have been uniform in reflecting leave under the chronic frequent and unpredictable heading. Next slide. The final topic, indefinite leave versus extended medical leave. Indefinite leave is when an employee or it could be the doctor writing a note, can give no date of return or even predict whether an employee will return to work. An approximate date of return is something very different. You know, if the employee says I can return sometime at the beginning of October, that''s an approximate date of return, but that''s not indefinite leave. An employer has something to work with here. Similarly, a time period for return; I will return between October 15th and 30th. That''s not indefinite leave either. Why is that important? Our next slide tells us why its important (Barry, one last slide). Employers may have to grant extended medical leave as a reasonable accommodation, but they don''t have to grant indefinite leave, leave of indefinite duration where an employee or her doctor can say: we don''t know whether the person will return, we can give you no idea when this person might return, that''s indefinite leave. And by its nature, call it unreasonable; call it an undue hardship, but either way, employers don''t have to provide it. Okay. That''s the highlights. I''m sorry if there were still some volume problems here. Hopefully we will do better in the Q&A part.
Great. At this time I think we''ll begin to take some questions, and again, I do apologize if it''s cutting in and out. We''re monitoring it in three different sites in our office and not having those same problems. Sometimes we find it''s an issue of the bandwidth that individuals may be using at various sites and things, so we do apologize for that. As people are thinking about some questions and want to weigh in on the questions, I have some that were sent to me in advance. One of them is a question related to whether or not employers need to go through an undue hardship analysis when they receive a request, and youve kind of answered this, so I just want to reiterate it for the person who asked it. Receive a request for indefinite leave, theyre- it''s not really clear from the response in your question number 21 on the guidance, if indefinite leave is simply not a reasonable accommodation or if its a possible accommodation, but an employee need notan employer does not need to provide it if he can demonstrate it causes undue hardship.
The EEOC takes a different analytical approach than almost every court, and I think we have a quite lengthy footnote in the guidance on this. You know it; I think what it comes down to, though, is the same thing. That be it the courts or EEOC, if an employer has the evidence that what they are facing is indefinite leave, then an employer doesn''t have to provide it. To EEOC youre going to say it''s undue hardship because that''s the legal analysis we use. To courts youre going to say it''s unreasonable, because almost all courts have said it''s just an unreasonable type of accommodation. But the critical thing, and this is why I wanted to highlight, is that, make sure as an employer what youre facing is something that qualifies as indefinite leave. That if its something like a time period or an approximate date of return, certainly at EEOC, but I think the courts would do the same thing here, that doesn''t yet show indefinite leave. So I think the more important element for an employer here is to make sure that the facts add up to something that can be called indefinite leave.
Great. Thank you for that. And lets see, Im waiting to see if anyone else has any questions at this time. So if you do, if you are using your microphone, go ahead and press on the control key to ask your question, as soon as I stop. And then after you are done asking a question make sure you release the control key so our speakers can respond. Otherwise go ahead and type a response or a question into the chat box so that we can read it. So if there''s any questions at this time please go ahead. Okay. This is Robin again. Ive got another question that was sent to me, so I''ll go ahead. This is one whos got a question related to your example number 29, related to requiring an employee who has performance and conduct programs to go to an employee assistance program. The question is: is the employer requiring the employee to go to the EAP so the employer can gather medical information or so that the employee can receive counseling or exactly why would that be recommended? Please expand under what circumstances an employer can require someone to use an EAP program for that, and for what purposes?
As the person who wrote this document, I had to kind of quickly grab it to see example 29, because I don''t think I have committed to memory what each example is by number. But in example 29 what we were talking about is an employee who, fairly suddenly and over a relatively short period of time, starts exhibits performance and conduct problems that are very unusual, I mean, almost like a complete personality change, the kind of thing, again, you don''t have to be a doctor, you know, as a layperson, somebody who is now exhibiting almost as I say a kind of different personality, something is definitely wrong, you know, what do you do? And in, in the context of this example, we talk about a number of actions that an employer may use to respond to this situation, not that we''re saying an employer has to do the following. A lot of times we get the question, you know, well, is it okay as an employer for me to do the following? So we offer three examples- three or four examples of what employers might do, one of which is sending somebody to an EAP, an employee assistance program, assuming an employer has one. And the idea here wasn''t that you were ordering somebody to go, because you got to be careful here. Depending on what you want out of the EAP, that could be, if you order somebody, you are ordering in effect a medical exam, and remember, the ADA has some stringent rules on when you can order a medical exam. So really what we were getting at in example 29 was hey, sitting down with someone, pointing out, again, unacceptable performance, unacceptable conduct that has to change, it has to change right now, but to say, look, you know, you might want to go to our EAP. It''s here. Thats why its an employee benefit. If you think it would be helpful, just a reminder, but as your supervisor, let''s start reviewing what you are not doing right, and what has to change immediately. So that''s really what we were getting at.
Great. Thank you for that clarification. I see a couple of examples -- questions -- one I can ask Mary Ellen and others who are interested. She is specifically talking about the questions or examples that were just being cited are in the document that she originally discussed, thats on the Equal Opportunity Employment Commission website. And if you go to their website, which is www.eeoc.gov it would be under the section for guidance, and that would be one of the links that are available on their website. And Sharon, you might be able to us some give more specifics about that.
It''s actually easier- right now just go to the home page, look on the right-hand side there''s a box saying recent items or recent developments, and scroll down and you will see the performance and conduct paper listed and just click on it and it will take you right to it. And as Robins saying, that''s where this example comes from.
I didnt actually look to see if it was still in the most recent stuff. But when it''s gone from there, and you need to find it, it''s one of those kinds of things you want to put in your bookmarks, is that section on guidances that is available on the EEOC website. A question was - I do see a question about getting back to the extended leave issue, and its: what if the extended leave continues, when does it become indefinite? So if someone has an extended leave and youve granted it as a reasonable accommodation, at what time or at what point does it become indefinite then?
Excellent question, and one we do attempt to answer in the document, which doesn''t mean I won''t take my answer a little further here. As you might imagine, it is impossible to say, you know, with absolute, with kind of an absolute answer, you know, well, it becomes indefinite leave if it''s over two months or three months, because, of course, you know, from employer to employer depending on the job itself, other factors, that answer may differ. But what we do talk about is the idea that an employer starts by granting leave, you know, yes, I can do it. We offer, in fact an example where grant leave, person says, Oh I was wrong about the date I thought Id come back, I need a bit more leave. The employer assesses it and decides, ok, without undue hardship, I can grant the second request, but theyre told, you know, it will only be for a certain amount of time. And then guess what, as the new date approaches for the employee to return, once again, letter comes in from the doctor, oops, nope, not now. And we basically, you know, there''s some more facts that we put into the example, but we lead to a conclusion that it is now indefinite leave, and the employer can turn the person down. So what we''re really trying to do in the examples is to put in various pieces of information to suggest the kinds of things employers and employees should keep in mind. Employees as well obviously have a vested interest in this, about showing when it could add up that, a request for an extended leave changes into more, in to indefinite leave. But there''s no way I can give you a kind of firm, quantitative cutoff for that, because it is just going to vary. But clearly, when employers can start to feel the impact back in their job, back in the workplace, their inability to really plan rationally for this absence, those are all signs employers should be listening to, because those are legitimate signs something is becoming undue hardship.
Great. Thank you. Let''s see I have got another question. Can an employer ever require an employee to go to an EAP, or can it only be a suggestion? So, I think it is just a clarification of your previous statements and our discussion of whether or not, can I require, as a condition, or is it just a suggestion and then it''s up to the employee to take that?
The thing about EAPs that I always want employers to be careful about, and EAPs can differ, employers offer different services, but by and large EAPs are going to be staffed by healthcare personnel. It may be a clinical psychologist. It may be a licensed clinical social worker, but its somebody who would be broadly in the healthcare or allied healthcare professions, and remember any time an employer orders an employee for some kind of medical exam or medical assistance under the ADA, an employer has to justify that as job-related and consistent with business necessity. And we have a whole guidance on that particular issue. Of course, they are going to be times employers can justify it, but I think employers need to be careful because you are triggering that part of the ADA that does put limits on when any kind of medical exam can be ordered. And if its unclear, would this be ordering a medical exam or not? Thats the first issue an employer needs to look at. If it is something that would be considered medical, then an employer is going to have to think, do I have business necessity reason for doing it? Clearly, suggesting somebody go to an EAP can''t really set you astray, because it''s a suggestion, which means the employee is free to turn it down. So in terms of when they can order it, that would be, you know, going through a variety of examples, and looking at specific facts to see when or, or when it is not business necessity. So that''s the caution for employers on how to use EAPs.
Great. Thank you. We''re going to have to move on at this point. And at this time we''ll thank you, Sharon for your comments. I''m sure we''ll hear from you in a few moments here as we get into the ADA Amendments Act as well, but I''m going to turn the microphone over to Barry Taylor. Go ahead, Barry.
Hi, everyone. First, I just wanted to thank Robin for inviting us to do this session. We think it is very important for people to get information on the ADA Amendments Act, and I wanted to acknowledge my colleague Alan Goldstein who helped put this presentation together, and he gets all the credit for any nifty visuals that are here. So, real quickly as people know the ADA was passed to provide broad national standards that didn''t exist prior to 1990 when it was passed, and states from all over the land varied in their protections, and so we wanted to have a national standard to provide clear and comprehensive information on how to eliminate discrimination. We also wanted -when Congress enacted the ADA, we wanted to make sure that it was consistent with the Rehabilitation Act which had been passed in the 70s for people who received federal funding. And right before the ADA was passed, the Supreme Court decided a case called the Arline case which took a very broad interpretation of the definition of disability under Section 504. And there was intent from Congress that the same broad view of disability definition be adopted through the ADA when they adopted, really, a definition of disability, substantially the same as the Rehab Act. Unfortunately, though, the Supreme Court has had very narrow interpretations of the ADA, much more narrow than people expected. And there really are two main cases that court -- that people point to as far as concerns from the Supreme Court. One is, known as the Sutton trilogy involved a case, the Sutton case and two others that were very similar, dealing with the issue of mitigating measures, and the other was Toyota versus Williams, which took a very narrow view of the definition of disability. Now, Im sure most people are familiar with the Sutton case. Youll remember thats the case involving two women who wanted to be airline pilots for United Airlines, but United said that they couldn''t be airline pilots for them because they didn''t see well enough without their glasses. They were able to correct their vision to 20/20 when they wore their glasses, but they didnt meet the vision standard without their glasses. So they sued under the ADA, but once they sued, United then said, well, you didn''t see well enough to be an airline pilot, but with your glasses you see too well to be covered under the ADA. So, the question before the Supreme Court was: Do you take mitigating measures into account when assessing whether somebody has a disability? And although most of the lower courts that had decided this issue and the federal agencies that had weighed in on this issue, had said no, you don''t take those into account. The Supreme Courts disagreed, and said, yes, you do take mitigating measures into account when assessing whether someone has a disability. And as you can imagine this has had a huge impact on the people with disabilities because the court did not limit its decision to the facts. It didn''t limit it to people who wear eyeglasses. They just said generally, if you use any kind of mitigating measure, which could include prosthetic devices, hearing aids, medication, that has to be taken into account. And really it forced people with disabilities them into a catch-22, meaning that they had to choose between enforcing their civil rights and addressing the manifestations of their disabilities. Really, an untenable choice of the Supreme Court put people with disabilities. And although the EEOC and the Department of Justice had guidance and regulations that provided their perspective on this issue, the court refused to take that into account, saying that Congress had not given them authority to provide interpretations on the definition of disability and therefore they were not going to give any deference to what the EEOC and the Department of Justice had said. Another thing that the court had said, in reaching their decision was that Congress had said when they passed the ADA that the ADA affected about 43 million Americans and if you added in people who used eye glasses that number would jump substantially and surely thats not what Congress intended. They also focused on language from the ADA that talked about disability being a discrete and insular minority, and that if you expanded it to people who wear eyeglasses and use other mitigating measures, that would go beyond what Congress had intended. And then a couple of years later in 2002, the Supreme Court decided another case, and while the facts are important, I think also sort of how the court decided it was probably even more important. But this was a woman, you might remember, who worked for Toyota who had carpel tunnel syndrome, and she wanted an accommodation where she wouldnt have to do parts of work that involved her arms being overhead which exacerbated her carpal tunnel. And ultimately Toyota did not provide that accommodation and she was fired and she sued under the ADA. When she sued under the ADA, she claimed that she was not substantially limited in performing manual tasks, and one of those manual tasks were those that she was performing at work. But the Supreme Court said we need to look broader than that and look to activities that are central to people''s, most people''s, daily lives, and they looked at the fact of whether she could brush her teeth, and dress herself and take care of her children and those kinds of things, and because she was able to do some of those things, they said she was not necessarily substantially limited in major life activity of performing manual tasks. The court went on and said that the definition of disability should be interpreted strictly, and should be creating a demanding standard. And this is very contrary to really civil rights jurisprudence in our legal history, where typically courts have said that civil rights should be interpreted very liberally and broadly to effectuate, you know, the important purpose as to why the act was passed. So, this was a very different type of approach to civil rights, and just resulted in a further narrowing of the definition of disability under the ADA. As a result, both of these decisions, and other decisions that are out there, a lot of people who we probably would have presumed to be covered by the ADA were found not to be substantially limited in a major life activity. And you see a list here, and on the next slide, other types of disabilities, where if you ask the person on the street most people would say, well yeah, that sounds like the kind of person who should be covered by this act. But because of this narrow interpretation, many, many people who, I think, Congress intended to be covered by the ADA were not covered by the ADA. As a result of these narrow decisions, people in the disability community thought that the ADA needed to be amended. And this was a very reasoned decision because people were concerned especially earlier, in earlier years that the makeup of Congress would not be receptive to changing the ADA, and actually if you open up the ADA it might make things worse. But finally people felt that it had gotten so bad for people with disabilities in trying to bring these cases and so many were being dismissed, not because they werent discriminated against, but because they couldn''t prove they had a disability, that something really had to be done. And so the ADA Restoration Act was introduced in the summer of 2007, and one of the major components of that version of the ADA Restoration Act was to change the definition of disability and take out that component that was really causing problems for people and proving that they had a disability; that substantially limits one or major life activity, the substantial limits component is really, was the central focus of the Sutton case. And many states already had laws that did not have this substantially limits one or more major life activity, so it wasn''t a radical change in viewing other disability laws that were out there that were similar, but it was a major change in that it took a significant component of the definition of disability out of what was the in the original text. But there were concerns among folks in the business community that, by changing the definition of disability, this would too greatly expand who was covered under the ADA, and so there was real pushback, and I think there was a recognition that unless there was some sort of agreement between the business community and disability community, it was unlikely this law and the amendment would be -the Restoration Act- would be passed. And so what happened, which I think was really ground breaking is that the representatives from the disability community, and the business community met together and worked on some compromised language. And they went through the different issues that were important to both sides, and wanted to craft something that they could both agree to, and then present that to Congress as an agreed-upon compromise, and with the commitment that they would not be looking for amendments or changes, that both sides would sign off on the version that was given to Congress. And so that revised version was actually re-titled the ADA Amendments Act. So, if you remember the ADA Restoration Act, if youre confused, this is sort of when that change happened. And one of the key components was to add back the original definition of the ADA that had been changed by the ADA Restoration Act. There was a little bit, and well talk about this in a second, a little change as far as how to define substantially limited, because people were still concerned about substantially limited. And the initial version that was put in the house defined substantially limited as materially restricts, and when that was introduced people thought that would help courts in recognizing that it was not as high a standard as they had been interpreting, sort of the significantly restricts version that had been adopted by many courts and actually the EEOC at the time. So, when the ADA Amendments Act was introduced there were some key findings and while you may not think that these are important, because the courts have really latched on to the key findings and purposes in interpreting the ADA, I think the people who put together the ADA Amendments Act wanted to make sure it was clear what Congress had found and tried too address, was that what courts had pointed out before. So you''re going to hear some themes that come up over and over through the findings, through the purposes, through the Act, and I think you might feel that we''re looking at maybe a belts and suspenders approach, but I think that''s intentional because of the way that the courts have interpreted the ADA, they didn''t necessarily just look at the definition of a disability, they maybe looked at some things in the purposes or in the findings. And so all of these I think are important. If it feels repetitive, I think thats intentional. So one thing that, that we want to, that Congress wanted to make sure in its findings, is that their initial expectation is that when they pass the ADA, that disability was going to be interpreted consistently with the Rehab Act. And as we talked about before, that had not happened, so they wanted to reiterate that in the finding section. They also wanted to reiterate that they believed that the Sutton and Toyota decisions that were referred to before, had unduly narrowed the ADA, and it had eliminated protection for many people that Congress had originally intended to be protected by the ADA. And then they also said in their findings, that as a result of whats happened by the Supreme Court, they have incorrectly found in, lower courts have incorrectly found in many cases that people with a variety of substantially limiting impairments don''t have an ADA disability. So they not only talked about the Supreme Court cases but they also talked about lower court cases as well. Then the act moves to the purposes of the ADA Amendments Act. And again, they wanted to explicitly reject the reasoning of the Sutton and Toyota cases and reinstate the reasoning from the Supreme Court, in Arline??, which I referred to before, the Rehabilitation Act case that had a very broad view of the definition of disability. They also wanted to make sure that it was clear that Congress wanted that the primary focus in ADA cases is whether the entities were covered by the ADA, like in Title 1, employers, whether they have complied with their obligation. And that rather than focusing on the disability, instead focus on whether there''s been discrimination or not. And really, that a person''s impairment and whether, and whether their impairment is an ADA disability, shouldn''t be receiving the extent of analysis that had been happening in the courts since the ADA had been passed. They always wanted to make sure to direct the EEOC to revise its current regulations that had defined substantially limited as significantly restricted. And this was something that the EEOC did after the Supreme Court cases that had narrowed the definition to be consistent with the Supreme Court. The EEOC didnt originally have that, but they had added that in, and Congress wanted to make sure that that was changed. And the EEOC was actually given notice that they will be evaluating the impact of the changes on the enforcement guidance, and Sharon, given her role, may be able to comment on that further for us. And I just wanted -- we had mentioned before the 43 million number that Justice O''Connor had relied upon, as being a reason why the ADA should be interpreted narrowly, so the folks who drafted the ADA Amendments Act said, well, let''s take that out, because we don''t want that to be an impediment. So as I said before, the ADA''s original definition of disability was added back in, that had been changed because of the ADA Restoration Act, but I think one thing that''s probably the most helpful thing in understanding the definition of disability is the section within that called rules of construction. And they talk about how courts should be construing the definition of disability, and giving some real clear guidance to courts of what Congress is intending. And I think probably the most important thing they say here is they explicitly state in the rules of construction, that the definition of disability shall be construed in favor of broad coverage; shall be construed in favor of broad coverage to the maximum extent permitted by the terms of this act. So if there was any question as to what Congress intended here about the definition of disability, I think this rule of construction makes it clear that they want courts to take a very liberal view of whats considered disability and then get on with the part of determining whether or not somebody has been discriminated against or not. They also in these rules of construction, explicitly, again, reject the Supreme Courts decisions in Sutton, making clear that mitigating measures are not to be considered when determining that someone has a disability, and really, they eliminate that catch-22 that we talked about before under current law. They do have an exception, though, however, with respect to people who use eyeglasses or contact lenses and said that employers and other entities that are covered by the ADA can take those into account. Those are the mitigating measures that they can take into account. Now elsewhere the act contrasts eyeglasses and contact lenses with low vision devices which really magnify and enhance and augment text for people with significant vision disabilities. So eyeglasses and contact lenses can be taken into account, but if somebody uses a low-vision device that should not be taken into account when determining whether somebody has a disability under the ADA. Also in these rules of construction, the act makes clear that episodic impairments are covered. There was some confusion on that, but based on some of court decisions whether or not episodic impairments that may have gone into remission at some point, would be covered under the ADA. Some examples of episodic would be people with epilepsy, or cancer, diabetes, mental illness those types of things. And so if courts had previously said in cases that episodic conditions aren''t covered, that''s repudiated by the act here. Also one thing the court did, or, not the court, excuse me, Congress has done, is expressly listed some major life activities. If you look back at the ADA, major life activities weren''t actually listed in the text of the act at all. And so Congress thought, well, lets put some examples here. And one thing they wanted to make sure was that the list they provided was an illustrative list, it was not an exhaustive list. So they made clear that you can still have major life activities beyond this list, but thought that this list would be helpful in identifying some of the major ones that they thought were major life activities and what they intended, and you''ll see in this list here, a variety of major life activities that Congress has -- has set forth. In addition, they also have a listing of major bodily functions. And I think this is the result of some case law that started to look at this issue. So people who had -- were having challenges being covered by the ADA because they were having a hard time finding a major life activity that went with their disability, but their disability, or their impairment, really did involve a substantial limitation of a major bodily function. I think a classic example is a person with heart disease having a major bodily function of circulatory system being impaired and substantially limited by the fact that they have heart disease. So Congress has listed a lot of different major bodily functions that people with disabilities can rely upon when pleading that they have a disability under the ADA. Congress also wanted to make sure that it was clear that only one major life activity needed to be impacted. I think the Williams case raised some concerns when youre talking about activities that were central to people''s daily lives and they were looking at major activities at home, and all kinds of different things. And I think it made it confusing for people; really what did you have to prove? The court, excuse me, the Congress here made clear that one major life activity is sufficient. The regarded as prong also was given some additional clarification for people. One of the things, I think whats confusing, and that some courts were doing, were saying that the person with the disability had to prove that not only were they regarded as having an impairment, but they also had to show that the employer had regarded them as being substantially limited in a particular major life activity. And because of the subjective nature of trying to prove what someone thought, that became very difficult, and I think Congress recognized the difficulty there, and said really we want you to be, talk about regarded as having an impairment, not regarded as being substantially limited in a particular major life activity. Also Congress clarified, as far as in the regarded as-- they talked about that -- within the section, that it does not apply to impairments that are transitory or minor. And they actually define that as something that has an expected or actual duration of six months or less. This just goes in to what we were saying before. Moving on to the next slide, another issue that had come up in some court cases is: are people who are only under the regarded as prong, definition of disability, are they entitled to a reasonable accommodation? Most courts had said no. They did not believe that people who only qualified for the definition of disability under the regarded as prong, were entitled to a reasonable accommodation. However, some courts had found otherwise. So I think this is something that the business community wants some clarity on, and it''s clear now that if you only qualify under the regarded as prong, you are not entitled to a reasonable accommodation. Certainly an employer can provide that, if theyd like, but it''s not required by the new law. There was also some questions about qualified. At one point the ADA Restoration Act had removed the term qualified, but that''s back in, and the ADA Amendments Act makes it unlawful to discriminate against a qualified individual on the basis of disability. I had mentioned before that the Supreme Court had not been deferential to the federal agencies that were charged with interpreting the ADA. They had not been deferential to their interpretation of the definition of disability. And what the ADA Amendments Act also does is makes clear that they do have authority to interpret the definition of disability. Theyre not limited to their particular title, like Title 1 just for the EEOC, but they can also look at the definition of disability which occurs prior to Title 1. The same thing for the Department of Justice and the Department of Transportation and they -- you know, explicitly repudiate the Supreme Courts ruling in Sutton that allowed courts to disregard the federal regulations. And as I said before the EEOC indicated that they will be moving on these issues including redefining substantial limitation. The act also makes clear that the ADA and the Rehab Act should be interpreted consistently, and they made some minor modifications, so that that happens with both acts, so they are interpreted and consistently between each other. Another thing that the act states is that -- and this is really I think, a reiteration of the current the law, but because there is a provision now that says that you can take into account glasses and contact lenses, there''s anticipation that there may be some vision tests that are -- that are provided. People being asked to take vision tests in an uncorrected, unmitigated state, such as in facts related to -- in the Sutton case, vision test for airline pilots. And what the ADA Amendments Act says is: for those vision tests that you have people taking, with uncorrected vision, you still need to make sure that any tests that you use are shown to be job related for the position and consistent with business necessity, which really is a reiteration of what current law is, with respect to all medical examinations, but I think Congress wanted to make that explicit as well. And just finishing up, and then we''ll open it up for questions, the ADA Amendments Act, probably people know by now, moved really quickly through Congress. It was voted out of two House committees, the House Education and Labor Committee, and the Judiciary Committee, with overwhelming majority, and passed, again by an overwhelming majority in the House of Representatives. Then it went to the Senate and the bills were very similar but the big difference in the Senate was: they did not like that materially restricts language that I mentioned before, that was attempting to clarify the definition of substantially limits. So they took that out, and as you''ll see in the final version of the ADA Amendments Act there is nothing about materially restricts, or defining substantially limits. Instead, it says, we just want -- the Senate version said, let''s define substantially limits consistently with the findings and the purposes of the ADA Amendments Act, which are those provisions I went through before, that lay out that Congress intends for the definition of disability to be interpreted very broadly and enforced to the maximum extent possible. And so that was the Senate''s way of addressing that issue. And the House -- and so it passed by voice vote in the Senate in September, and in some cases when the Senate version and the House version differ, you''ll see a conference committee. But instead the House, I think in having been consulted on what the Senate''s concern were, had agreed that it made senseleaders in the House agreed to the changes that the Senate had made. And so they were able to take it right to the House floor and get the Senate version approved by voice vote as well, and then it went to President Bush who signed the act on September 25th of this year, with an effective date of January 1st of 2009. I''m skipping a couple of these slides, dont be concerned, but I think ones that maybe are repetitive, some things that have already been said, because we want to make sure that we have time for questions. We talk about some of the ramifications for employers here. I think that people who use mitigating measures and who have episodic conditions who employers may have thought weren''t necessarily covered before, clearly would be covered under the new law, or would not be prevented from being covered by the new law because of their mitigating measures or the episodic conditions. And I think there''s also clearly expanded for, or clarifying of, regarded as prong as well with respect to no longer having to prove that the person is regarded as being substantially limited in a particular major life activity. And as stated before the emphasis will be on the employers conduct rather than the employees medical condition, that''s what Congress really wants this act to be about. Reiteration of the business necessity test, and obviously these are some new things for employers as well as people with disabilities, and so having training on the new provisions of the ADA and potentially even reevaluating current ADA policies may be helpful for employers. So with that, I think we will open it up for questions. And let''s see, I''m trying to read some of the questions that have come in since I started talking, lets see. So youre saying the people in Sutton still would not be covered? Well, yeah, I think, [Participant 1], what -- what happened in that case is that we had the ADA Amendments Act saying that you can take into account eyeglasses and contact lenses, and my understanding from reading the facts is that that''s how they mitigated their disability, and when they did, they weren''t a person with a disability. They had also made a regarded as claim, if I remember correctly. And so, given the changes in regarded as, that may have been -- made it easier for the plaintiffs in Sutton to be covered. But I think under the first prong, they probably still would have lost. Which, you know, I think the classic statement in law is that bad facts make bad law, and I think the facts of the plaintiffs in Sutton were bad facts, and they werent the kind of folks who -- most people want to spend court deciding a major disability case, and so the fact that they wouldn''t be covered, I think still means that a lot of other people would be covered. And then it says: Barry, since the ADA Amendments Act does not address the University of Illinois versus Garrett, does it have any impact on monetary damages against Title 2 entities? My reading is that it would have no impact on Garrett and the 11th Amendment case law at all. Sharon can weigh in if she disagrees with that. But they really were focusing on the definition of disability and some of the issues regarding that, and not on some of the other issues. There were some people, particularly within the disability community, who had hoped that the ADA Amendments Act would be maybe broader in its scope and would address things beyond what ultimately was addressed, but -- so for instance, maybe the 11th Amendment issue, or, perhaps some of the other things like, there is always some concerns about the direct threat, the Hatzakos case that the Supreme Court decided, that said that direct threat applies to threat to self as well as threat to others, which was beyond the text of the ADA, and wanting to clarify that Supreme Court case. You know, theres a lot of people out there who wanted the ADA to have damages for people who are bringing suits under Title 3, or to address some of the other things that courts have done to narrow the ADA. But I think there are some strategic decisions made in bringing forth the ADA Amendments Act to focus on the things that were of the most concern to the broadest portion of the disability community. And I think the consensus was that the definition of disability was the area that raised the most concerns and that that should be the focus on this act. Okay. Are there going to be revisions to TAMs? -- I''m not sure what TAMs is, sorry - coming out with clarifications being spelled out for business etc. which were addressed in this bill?
I''m taking the microphone away from you Barry, because I think what they are referring to is the EEOC''s Technical Assistance Manual (TAM). And this is probably as good a time as any to give you a sense of whats going on here at the EEOC. With the Amendments Act having an effective date of January 1, 2009, so just over two months from now, EEOC is working as quickly as we can to develop regulations to implement the new law. That is our first focus at this point. Things like the ADA Technical Assistance Manual, other documents, we will turn our attention to afterwards. If you are on the EEOC website and you look at our many ADA documents, you will now see- all of them have a notice that we will be reviewing the documents to see what, if any changes are necessitated by the ADA Amendments Act, and that when such changes are made, if they are necessary, we will prominently display that, so you will know that the document has been reviewed and changed if necessary. But all the major focus right now is on getting proposed regulation. Now there isn''t enough time, and for those who are familiar with the regulatory process, something like --you know, something like 5,000 people it sometimes seems, throughout government will have to look at these things. So we don''t know -- and I just can''t say, because honestly nobody knows if we can come out with something by January 1. We are doing our level best. I invite people to keep checking the EEOC website because when we put out a proposed rule, obviously it will be up there, everybody will have a chance to comment, and I certainly encourage if you do have comments to offer, please, make them at the time, because based on what happened at the original ADA, we listen to you, and changes are made, so we do want to hear from you. Let me make one correction to something that Barry said, and that is in talking about the EEOC''s definition of substantially limited in the regulation. In part, the definition is a person who is significantly restricted, and yes, Congress in the Amendments Act signaled its disapproval and its requirement that EEOC change that language, which, of course, we will do. But contrary to what Barry said, that language was not added to the ADA regulations in response to any Supreme Court ADA decision. That was there in the original ADA, and members of Congress, like everyone else, had an opportunity at that time when we proposed the original ADA regulations, to comment and -- and to indicate if they thought we were off track. And at that point in time, members of Congress did not indicate that they had a problem with the language, but it is clearly Congress''s prerogative to decide now they don''t like the significantly restricted definition, and you can expect that when EEOC comes out with proposed rules for the Amendments Act, we will not have that language in there anymore.
Some questions people have about the PowerPoint presentation and such. Just to clarify at the conclusion of this session you will receive an email with a copy of all of the PowerPoint as well as resource materials from the speakers, so you''ll get that within probably minutes of this session concluding, because thats all prepared and ready to be sent out to your emails that you all gave to us. So I hope that helps.
Theres a question about food allergies, and Robin and Sharon may have a better understanding of this than I do. But I think the main thing would be if a person does have a food allergy they would still need to indicate what major life activity they are substantially limited in because of that food allergy.
I agree. I mean, again, we don''t have any per se list of any condition that is covered. Remember, as Barry indicated, Congress did decide to retain the substantially limited in a major life activity as the definition of disability, you know, a variation in all three definitions. But clearly, and of course, I''m trying to see, you know, breathing is obviously a problem, is a major life activity for people with food allergies because if they are exposed they can have tremendous problems, and obviously in terms of going into shock, weve probably got some major bodily functions that are implicated here. So, I think there is probably an analysis that can be done to say that food allergies could be covered. But remembering that in every instance, people will have to make it that kind of showing, or certainly thats something the EEOC will have to make a finding on, or courts will make a finding on.
Great. You know what Sharon I was going back up to make sure we were getting all of the questions. And I do have some additional questions that came through on your conduct and performance standards that I would also like to get in at this point too, if possible. I have got some questions here about -- If through an investigation an employer learns about not only current conduct issues by an employee with a disability, but also past conduct that were not addressed by a supervisor or immediate supervisor, what position does that put the employer in?
Good question and a tough one. I think, you know, there is going to be some facts that would need to be looked at, starting with how long ago did this happen? Are we talking about something that happened a month ago or six months ago or six years ago? And also I think it''s what the violation was. I mean, if somebody stole proprietary information from an employer, you know, that''s one issue. If it was a much more modest kind of misconduct I also think it''s about whether theres any connection with current problems that generated the investigation and found something in the past, or is it something just, you know, totally different? You know, I think this is one of these things, I mean again, it''s not so much an ADA issue necessarily. I mean, you know that if an employer would go back in time for any employee, if something came to light and address it, then I think they can do the same for an employee with a disability. While I don''t know based on this question, disability may have nothing to do with what the infraction was. So in that case then disability is irrelevant. But even if the disability were somehow involved, I think as I said, we would need to know something about how long ago, whats the infraction, what is it that the employer can do at this point to address it, to see where you go from here.
Great. Thank you. We''re getting towards the top of the hour. But I just want to make sure we have gotten as many questions as we possibly could. Does anybody -- we have a question here that does - Does anyone able to say anything about the rule-making process by DOJ under Title 2 and Title 3 to implement the ADA amendments act? Sharon, you maybe have information, but as I understand it in my discussions with them, that they are waiting for the EEOC''s regulations to come out, and then they would need to go through the process of amending their regulations to reflect the definition from the ADA Amendments Act and the subsequent regulations; is that correct?
It''s correct that the EEOC is taking the lead in terms of drafting proposed regulations on the definition of disability to be consistent with whats in the Amendments Act. And when I said a few minutes ago, it feels sometimes like 5,000 people will be reviewing this, prominent amongst those 5,000 will be the people at Department of Justice. Because obviously there is only one definition of disability that will apply throughout the ADA and, so if the Department of Justice disagrees with what EEOC is proposing or has serious concerns, obviously we''re going to have to sit down with them. And all of that, by the way, will be occurring before we put out proposed regulations. The Department of Justice will see something before those of you listening in this afternoon. In terms of anything else in the Amendments Act that is not something that EEOC would have jurisdiction over, I know that there are references for example, to auxiliary aids and services, and that is Title 2 and Title 3 terminology, not Title 1. DOJ may well be going ahead and looking at their regulations to see if the -- what other changes they need make that aren''t dependent on EEOC, but you would need to consult directly with Justice Department officials about that.
Great, Sharon and then one other question for Barry and Sharon. Barry you touched on the Rehab Act and the issues of language to make the definitions consistent. But we have a question here: What are the implications, if any, for the definition under the Rehab Act for federal employees as a result of the Amendments Act? Is it different or is the language applicable to the entire Rehab Act, not just section 504?
Well, Sharon can weigh in if she feels differently, but I think what Congress intended was that federal employees should be treated the same way as employees that are otherwise covered by the ADA. And that the broad liberal interpretation of the definition of disability that Congress is requiring under the ADA Amendments Act would also be required under the Rehabilitation Act. Like we said before, previous decisions before the ADA hadnt been interpreted very liberally, and I think this is making sure that both are doing the same going forward.
Absolutely. The Amendments Act is clear that all relevant sections of the Rehabilitation Act, by which I mean Section 501 which prohibits federal agencies from engaging in employment discrimination against applicants and employees with disabilities; Section 503 of the Rehabilitation Act which applies to federal contractors that they cannot discriminate in employment based on disability; and Section 504 which is federally funded, federally assisted programs and entities also cannot engage in discrimination based on disability in employment. So, all of them will be changed as a result of the Amendments Act, because they all must be consistent. By the way, just very quickly Robin, I noticed one, and I know we''re right up against the time, but one very quick answer to a question about, Why would anybody want to use the regarded as definition if you don''t get reasonable accommodation under that definition? The reason that people will want to use it is that it will probably be the easiest definition on which to establish coverage since all it takes is some evidence that an employer made an employment decision based on a disability, or based on an impairment, excuse me, and it obviously cannot be for people who need reasonable accommodation. But if the claim is a failure to hire or a failure to promote or termination, that has nothing to do with meeting reasonable accommodation, then the regarded as provision is probably going to be the choice for people to gain coverage.
Great. Thanks, I''m glad you caught that, trying to make sure that we get all of the questions that were asked. I just, I know we''re at the bottom of the hour and past time, but one other question again going back to conduct Im seeing here is that, If an employee is considered a direct threat, is the employer allowed to discriminate against the employee and will the employee receive any kind of assistance from ADA to prevent discrimination?
Okay. I''m sorry. I got a little lost, so I don''t know that my answer is going to be the one that the questioner is looking for. If somebody due to a disability poses a direct threat, and that direct threat cannot be lessened or eliminated through reasonable accommodation, then by definition that is not a qualified individual with a disability, meaning an employer doesn''t have to hire the person or doesn''t have to retain them as an employee, so I''m not sure where the discrimination is coming in. I mean, you know I can''t imagine an employer wanting to keep somebody who poses a direct threat around for the purpose of discriminating against them. So I''m obviously missing what the questioner is trying to get at. But, you know, if the person is posing a direct threat and reasonable accommodation wont help, theyre not qualified, and therefore, you know, terminating the person, say, on that basis or not hiring them, that would not qualify as discrimination. Thats the appropriate result under the ADA, or its the permitted result under the ADA.
So basically the -- the standing or the decisions previously, in the Chevron case and such, hold that they don''t change in regards to the ADA Amendment Act around direct threat?
Oh, okay. If thats what the questioner is getting at, then the answer is that the ADA Amendments Act does not affect the Hatzakos decision that Barry was mentioning, the direct threat case of a few years ago with the Supreme Court- its just not addressed in the Amendments Act. So direct threat is -- remains the same, nothing will change as a result of the Amendments Act.
Great. Thank you very much. And I want to thank both Barry and Sharon for their time and their attention today. And for all of you that participated, and again, you will receive an email with the materials. We also ask you to complete the evaluation, it''s an online evaluation. We have the link here on the website, but also it will come in your materials that you are being sent as well. We do invite you to join our session in January, which is on January 13th from 1 to 2:30 p.m. Central Standard Time. And our topic is interplay between ADA and FMLA. So please consider joining us. You can go online to www.ADA-audio.ORG to get more information about the program, or call your regional Disability and Business Technical Assistance Center. Thank you very much and everyone have a great day.