AMERICANS WITH DISABILITIES AMENDMENTS ACT _ADAAA_

AMERICANS WITH DISABILITIES

AMENDMENTS ACT (ADAAA)

RESTORING THE DEFINITION OF DISABILITY





PRESENTED BY ….

 MARCIA L. HYATT, Supervisor



 SPYRIDON “STEVE” MELLOS, Investigator







HOUSKEEPING

 QUESTIONS?!?!?! ASK AS WE GO ALONG

 INTERACTIVE PROCESS!!!!!!

 NEED MORE INFORMATION?

 www.eeoc.gov OR CALL 313-226-4600

 MARCIA L. HYATT: 313-226-2290

 STEVE MELLOS: 313-226-4629





WHAT YOU WILL LEARN

 WHY WAS THE ADA AMENDED

 DOES THE ADA AND THE ADAAA APPLY TO ME

 WHAT AFFECTS THE DETERMINATION OF WHAT IS A

DISABILITY



WHAT IS THE ADA

 THE AMERICANS WITH DISABILITIES ACT WAS ENACTED IN 1990 (ADA)

 PROTECTS INDIVIDUALS WITH PERMANENT IMPAIRMENTS WHICH SUBSTANTIALLY

LIMIT ONE OR MORE LIFE ACTIVITIES

 INDIVIDUALS WHO HAVE A RECORD OF SUCH IMPAIRMENTS, AND/OR

 INDIVIDUALS WHO ARE REGARDED AS HAVING SUCH AN IMPAIRMENT

 ALSO COVERS INDIVIDUALS ASSOCIATED WITH SOMEONE DISABLED (FAMILY

MEMBER)

WHAT IS THE ADAAA

 ENACTED ON SEPTEMBER 25, 2008

 EFFECTIVE AS OF JANUARY 1, 2009

 REINSTATE A BROAD SCOPE OF PROTECTION BY EXPANDING THE

DEFINITION OF “DISABILITY” NARROWED BY SUPREME COURT

DECISIONS

 IDENTIFIES SPECIFIC IMPAIRMENTS WHICH ARE CONSIDERED TO

ALWAYS BE DISABILITIES



DOES THE ADA AND THE ADAAA APPLY TO MY

COMPANY

 THE ADA COVERS EMPLOYERS WITH 15 OR MORE EMPLOYEES

 THE ADAAA DOES NOT MODIFY COVERAGE

 ENGAGED IN INTERSTATE COMMERCE

 THE HARM OCCURRED WITHIN 300 DAYS OF THE DATE OF FILING A CHARGE

 THE EMPLOYER KNEW OR HAD REASON TO KNOW THAT AN EMPLOYEE OR

APPLICANT WAS DISABLED





KEY TERMS

 MAJOR LIFE ACTIVITIES

 SUBSTANTIALLY LIMIT

 MITIGATING MEASURES

 NEGATIVE/POSITIVE EFFECTS OF MITIGATING MEASURES

 EPISODIC OR IN REMISSION

 IMPAIRMENTS THAT CONSISTENTLY MEET THE DEFINITION

OF DISABILITY



MAJOR LIFE ACTIVITY

 CARING FOR ONESELF, MANUAL TASKS, SEEING, HEARING,

EATING, SLEEPING, WALKING, STANDING, SITING, LIFTING,

…

 NOW INCLUDES IMMUNE SYSTEM, NORMAL CELL GROWTH,

DIGESTIVE, CIRCULATORY, RESPIRATORY, ENDOCRINE AND

REPRODUCTIVE FUNCTIONS, …

SUBSTANTIALLY LIMIT

 MEASURED IN COMPARISON TO MOST PEOPLE IN THE

GENERAL POPULATION

 NEED NOT PREVENT OR SIGNIFICANTLY RESTRICT

PERFORMING



MITIGATING MEASURES

 THE DETERMINATION OF A DISABILITY IS MADE WITHOUT

THE MITIGATING MEASURES

 MITIGATING MEASURES INCLUDE MEDICATIONS,

PROSTHETIC DEVICES, MEDICAL EQUIPMENT AND DEVICES

(EXCEPT NORMAL EYE GLASSES AND CONTACT LENSES)



NEGATIVE/POSITIVE EFFECTS OF MITIGATING

MEASURES

 THE NEGATIVE EFFECTS CAN BE CONSIDERED IN

DETERMINING DISABILITY STATUS

 POSITIVE EFFECTS CANNOT BE CONSIDERED IN

DETERMINING DISABILITY STATUS

 POSITIVE EFFECTS CAN, HOWEVER, BE CONSIDERED IN

DETERMINING REASONABLE ACCOMMODATIONS



EPISODIC OR IN REMISSION

 AN INPAIRMENT THAT IS EPISODIC OR IN REMISSION CAN

BE DETERMINED TO BE A DISABILITY WHILE THE

IMPAIRMENT IS ACTIVE

 EXAMPLES: EPILEPSY, HYPERTENSION, MULTIPLE

SCLEROSIS, ASTHEMA, MAJOR DEPRESSION, BIPOLAR

DISORDER AND SCHIZOPHRENIA



IMPAIRMENTS THAT CONSISTENTLY MEET

 EXAMPLES: DEAFNESS, BLINDNESS, INTELLECTUAL

DISABILITY, MISSING LIMBS, MOBILITY IMPAIRMENTS,

AUTISM, CANCER, CEREBRAL PALSY, DIABETES, EPILEPSY,

HIV/AIDS, MULTIPLE SCLEROSIS, MUSCULAR DYSTROPHY,

MAJR DEPRESSION, BIPOLAR DISORDER, PTSD …

PRE-EMPLOYMENT

 EMPLOYERS ARE REQUIRED TO PROVIDE REASONABLE ACCOMMODATION DURING

THE APPLICATION AND INTERVIEW PROCESS

 INDIVIDUALS REQUIRING A REASONABLE ACCOMMODATION MUST REQUEST IT

 INTERVIEWERS CANNOT INQUIRE ABOUT DISABILITIES, WORKERS COMPENSATION

INJURIES OR OTHER MEDICAL INQUIRIES LIKELY TO ELICIT INFORMATION ABOUT

DISABILITIES

 APPLICANT CANNOT BE REQUIRED TO TAKE A PRE-EMPLOYMENT PHYSICAL



INTERVIEWS

 INTERVIEWERS MAY ASK “CAN YOU PERFORM THE ESSENTIAL FUNCTIONS OF THIS

JOB, WITH OR WITHOUT A REASONABLE ACCOMMODATION

 DO YOU POSSESS THE LICENSE/EDUCATION OR OTHER QUALIFICATION REQUIRED

OF THE JOB

 APPLICANTS MAY BE ASKED TO DEMONSTRATE HOW HE/SHE WILL PERFORM A

SPECIFIC JOB FUNCTION

 CANNOT ASK ABOUT NEED FOR LEAVES, BUT MAY SET FORTH THE ATTENDANCE

POLICY







CONDITIONAL OFFER OF EMPLOYMENT



 AN APPLICANT MAY BE SENT FOR A PRE-EMPLOYMENT PHYSICAL,

PROVIDED ALL POTENTIAL EMPLOYEES ARE SENT FOR PHYSICALS

 IF APPLICANT IS NOT HIRED AS A RESULT OF THE PHYSICAL, THE

EMPLOYER MUST SHOW THAT NO ACCOMMODATION WAS AVAILABLE

TO ENABLE THE INDIVIDUAL TO PERFORM THE ESSENTIAL

FUNCTIONS OF THE JOB, OR

 THAT THE PHYSICAL DISCLOSED A DIRECT THREAT TO SELF OR

OTHERS



POST HIRING PHYSICAL EXAMINATIONS



 AN EMPLOYER MAY REQUIRE AN EMPLOYEE TO TAKE A PHYSICAL EXAMINATION IF

IT IS JOB RELATED AND CONSISTENT WITH BUSINESS NECESSITY

 JOB PERFORMANCE ISSUES

 FITNESS FOR DUTY

 VOLUNTARY EXAMINATIONS THAT ARE PART OF AN EMPLOYEE HEALTH PROGRAM

 DRUG TESTS ARE NOT MEDICAL EXAMS, CAN BE DONE ANYTIME



REQUESTING A REASONABLE ACCOMMODATION



 THE EMPLOYEE MUST REQUEST THE REASONABLE ACCOMMODATION

 TEMPORARY RESTRICTIONS ARE NOT CONSIDERED REQUESTS FOR REASONABLE

ACCOMMODATION

 THE EMPLOYEE MUST FURNISH MEDICAL DOCUMENTATION SUPPORTING THE NEED

FOR A REASONABLE ACCOMMODATION

 THE EMPLOYER AND THE EMPLOYEE ARE REQUIRED TO ENGAGE IN AN

INTERACTIVE PROCESS TO PROVIDE A REASONABLE ACCOMMODATION



WORKPLACE ISSUES



 EMPLOYEES PERCEIVE FAVORATISM

 EMPLOYEES FEAR REQUESTING REASONABLE ACCOMMODATION

 STIGMA OF MENTAL IMPAIRMENTS

 APPEARANCE

 CUSTOMER PREFERENCE

 DIFFICULTIES IN SCHEDULING, ASSIGNMENTS

 PAY ISSUES



SOME TECHNIQUES TO RESOLVE WORK PLACE ISSUES



 TRAINING IN THE ADA AND ITS REQUIREMENTS

 GET THE EMPLOYEES INVOLVED IN COMMITTEES AND OTHER WORK LIFE ISSUES

 OBSERVE CONFIDENTIALITY BUT EXPLAIN THAT EMPLOYERS HAVE LEGAL

REQUIREMENTS WHICH MAY IMPACT INDIVIDUAL EMPLOYEES

 MAKE JOBS ABOUT THE STRENGTHS OF EACH INDIVIDUAL, NOT ABOUT COOKIE

CUTTER POSITIONS

 EDUCATE EMPLOYEES ABOUT DISABILITIES







Additional information

 INDIVIDUALS WHO, AS A REASONABLE ACCOMMODATION, ARE PLACED IN A LOWER

PAYING POSITION MAY HAVE THE PAY REDUCED

 CUSTOMER PREFERENCE NOT A DEFENSE TO HIRING DISABLED

 TRAIN MANAGEMENT/SUPERVISION TO HANDLE EMPLOYEE AND CUSTOMER

CONCERNS ABOUT A DISABLED EMPLOYEE

 DEVELOP AND IMPLEMENT A CLEAR POLICY REGARDING REASONABLE

ACCOMMODATIONS



EASY SOLUTIONS?



 THERE ARE NO EASY SOLUTIONS

 EMPLOYERS MUST TAKE REASONABLE ACCOMMODATION REQUESTS

ON A CASE BY CASE BASIS

 EXPLORE REASONABLE OPTIONS FOR ACCOMMODATION

 UTILIZE RESOURCES SUCH A THE JOB ACCOMMODATION NETWORK

(JAN)

 DISABILITY SPECIFIC ORGANIZATIONS

 TAX CREDITS



GINA

 Genetic Information Non-Discrimination Act

 Prohibits the acquisition and use of genetic information in

employment decisions

 Became effective in October, 2009





Contact Information

 Marcia Hyatt: 313-226-2290

 Steve Mellos: 313-226-4629

 Internet: www.eeoc.gov

 Toll Free: 800-669-4000

 Detroit Toll Free: 866-286-6440

 TDD Detroit: 313-226-7599