Employment Law Updates

SERVICE ANIMALS UNDER THE ADA – REVISED REGULATIONS EFFECTIVE ON MARCH 15, 2011

Is your business open to the public and therefore subject to regulation under the Americans with Disabilities Act (“ADA”)?  If so, you should know that there are new regulations concerning service animals, which take effect on March 15, 2011.  The revised regulations clear up the law as to what is a service animal and offers guidance for those businesses serving disabled patrons. 

Under the revised regulations, service animals are dogs, or in some circumstances miniature horses, that are individually trained to work or perform tasks for a disabled person.  Other animals, such as monkeys, lizards, cats, or snakes, are not service animals regardless of whether they have been trained. 

The service animal must be house trained, and it must remain leashed while in your place of business unless the handler’s disability or the nature of the service animal’s work prevents the use of a leash.  If excused from the leash requirement, the handler must still retain control of the service animal.  In addition to these requirements, a miniature horse must be of an appropriate type, size, and weight so that it may safely operate in your specific business facility.  If these conditions are not met, an employee may legally exclude the service animal.

Employees may not ask about the nature or extent of an individual’s disability; however, if the individual’s disability and the service animal’s role are not obvious, an employee may ask two specific questions.  First, an employee may ask whether the service animal is required because of a disability.  Second, an employee may ask what type of task the service animal is trained to perform.  Employees may not legally request documentation or charge a fee for the service animal. 

Keep in mind that these laws are related to businesses open to the public; ADA regulations related to employment issues are separate.

If you have questions about what kinds of service animals you must allow in your place of business, you should contact an attorney who has experience with the ADA.

COURT REMINDS EMPLOYERS TO BE CAUTIOUS

Recently, the U.S. District Court of Oregon ruled that an employee who suffered from narcolepsy could have a trial over whether she was substantially limited in the major life activity of sleeping and whether her termination for excessive absences was mere pretext.   Waters v. Fred Meyer Stores Inc., No. CV 08-322-HU.  In this case, Waters had been diagnosed with narcolepsy in 2004.  She was allowed intermittent leave in 2005 but Fred Meyer asked that she renew her FMLA/OFLA documentation in 2006.  The medical certification she initially submitted was determined by Fred Meyer to be inadequate and she was required to submit a new certification.  Prior to Waters resubmitting the form, she missed work and Fred Meyer considered the absences to be unexcused.  Waters later submitted the revised medical certification and her application for leave was accepted as of the date the revised form was submitted.  Waters missed work for unrelated reasons later in the year; those absences together with the absences that occurred while Waters was obtaining the revised medical certification exceeded the Company’s acceptable absences and Waters was terminated for excessive absenteeism.  Waters sued Fred Meyer for, among other things, violation of FMLA/OFLA and the Americans with Disabilities Act (ADA).  Because Waters was able to offer a detailed description of how her narcolepsy interfered with the major life activity of sleeping, and because she argued that her absences and her failure to provide a requested medical certification were related to her disability, the court found that Waters had sufficient evidence to allow her to go to a trial.

 

Not only does this case highlight the challenge all employers face in trying to accommodate employees with chronic disabilities, but it serves as a stark reminder that employers are prohibited from taking adverse employment action against an employee for conduct that could be caused by a disability.  Accordingly, employers should always consult with an attorney knowledgeable about employment law before taking any adverse action against an employee who suffers from a condition that may qualify as a disability under the ADA.

HOW THE RECENT ENACTMENT OF THE ADAAA WILL LIKELY AFFECT YOUR WORKPLACE

The ADA Amendment Act of 2008 (the “ADAAA”) will go into effect on January 1, 2009.  This new law offers greater protection to individuals with a disability by, among other things, changing the definition of “disability”.  Under the traditional definition, a “disabled” employee was an individual who suffered from a physical or mental impairment that substantially limited a major life activity, had a record of such impairment, or was regarded as having such impairment.  To determine whether a major life activity was substantially limited, the employer could consider whether a mitigating measure was available to correct or improve the impairment.  Further, the ADA was not specific about what was meant by a major life activity.

Under the ADAAA, the employer can no longer consider any mitigating measures other than ordinary eyeglasses or contact lenses.  This means an employee with substantial hearing loss who uses a hearing aid will be considered disabled even though the employee can correct or improve the hearing loss to an acceptable level.  Further, the ADAAA is specific about what is meant by “major life activity” -- it includes a detailed list of activities, and includes major bodily functions such as the immune, digestive and respiratory systems. 

These dramatic changes will undoubtedly make it easier for employees to qualify for protection under the ADAAA.  As a result, employers should expect to see an increase in the number of employees requesting accommodations in the workplace, and should make sure they are clear about their responsibilities during the interactive process.  Because of the potential for litigation in the event of an ADAAA violation, prudent employers should consult with an experienced employment law attorney to make sure their practices comply with the new requirements of the ADAAA.

CANTANKEROUS OR MENTALLY IMPAIRED?

Certain mental disabilities recognized by the ADA, notably bipolar disorder, paranoia and schizophrenia, can lead to conduct issues, even when an otherwise qualified employee is medicated or undergoing other treatment. But does an employer have to accommodate the employee who creates conflict with other employees and then claims to be impaired in the major life activity of “interacting with others?” Courts in some jurisdictions do not recognize “interacting with others” as a major life activity. However, the Ninth Circuit, whose jurisdiction includes Oregon, does, defining that type of impairment as “characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary.”  Fortunatley, the court made clear that not every cantankerous person who has trouble getting along with coworkers will qualify as disabled. However, if the employee gives the employer notice of a mental disability and requests reasonable accommodation based on a substantial limitation in interacting with others, the employer may have a duty to accommodate that employee, provided he or she is otherwise qualified for the position. And as with other disabilities and major life activities, Oregon employers should not assume that conduct issues are the result of a mental disability -- absent notification of disability and need for accommodation, employers are not required to accommodate employees who create conflict in the workplace.

ACCOMMODATION OF MENTAL DISABILITY IN THE NINTH CIRCUIT

The Ninth Circuit Court interprets the ADA as not requiring employers to accommodate employees who are merely “regarded as” disabled under the definitions provided in the statute.  While a case of potential mental disability may seem more complicated, the effect is the same.  Absent notice by the employee, the employer has no obligation to suggest that employee conduct might be the result of a mental disability.  Nor does the employer have a duty to accommodate the employee that is “regarded as” mentally impaired.  However, courts recognize that mental disabilities may make it more difficult for otherwise qualified employees to communicate their need for accommodation to the employer.  Therefore, once notice is given to the employer of a mental disability – by the employee, the employee’s family, trusted friend or healthcare provider – the employer may have a heavier burden of negotiating a reasonable accommodation with the impaired employee.

ACCOMMODATION IN THE NINTH CIRCUIT

The ADA defines “disability” in three ways:  (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such impairment; or (3) being regarded as having such impairment.  An employee who can perform the job’s essential functions with or without reasonable accommodation is protected under the ADA.  Interestingly, the Ninth Circuit Court – the federal appeals court whose jurisdiction covers Oregon as well as other western states – interprets the ADA as not requiring employers to accommodate employees who are merely “regarded as” disabled.  For an employee to be entitled to reasonable accommodation, there must be a request based on an actual disability or a record of such a disability.  Once the employer is notified of a disability and a request for accommodation is made, the employer must engage actively in assessing and establishing a reasonable accommodation.  Requests do not have to be in writing, nor to they have to use the language of the ADA including “disability” or “accommodation.”

WHEN IS A DISABLED EMPLOYEE PROTECTED UNDER THE ADA?

An employee who has a disability that impairs the employee’s ability to engage in a “major life activity,” such as taking care of oneself, walking, talking, breathing, seeing, hearing, learning, reproducing, interacting with others, sleeping, and working, may be protected under the ADA if the employee can perform the essential functions of the job with or without reasonable accommodation. If the employee is otherwise qualified for the position, then the employer must provide reasonable accommodation. Courts have discussed what accommodations are reasonable and also what roles the employer and the employee must play in the process of negotiating the appropriate accommodation. Once the employer is made aware that a disability exists, the employer must engage in a discussion of what assistance the employee needs to perform the essential functions of the job. Notification does not have to come from the employee. It can come from the employee’s healthcare provider, family or trusted friend.

WHAT IS A DISABILITY?

Not all impairments are disabilities under the ADA.  Disabilities that impair one’s ability to engage in “major life activities,” such as taking care of oneself, walking, talking, breathing, seeing, hearing, learning, reproducing, interacting with others, sleeping, and working may be protected under the ADA.  This does not mean that all employees who experience difficulties in those areas are disabled under the ADA. Impairments are considered in their medicated or curative states.  For example, while asthma may be a disability under the ADA, an employee with asthma may not be disabled if medications taken regularly prevent the symptoms of asthma.  Similarly, severely near-sighted employees may be seriously impaired in the major life activity of seeing, but if glasses or contacts bring their vision to normal, they are not disabled under the ADA.  Furthermore, a disability is usually a long-term or recurring condition.  Short-term conditions are not considered disabilities.  For example, an employee who sprains his ankle skiing is not protected under the ADA.  It may be difficult to determine at times whether an injury will result in a temporary condition of impairment or a disability under the ADA.  Consult your company’s attorney when you have doubts.

OBESITY: APPEARANCE OR IMPAIRMENT?

According to a recent study, roughly 64.5% of American adults are overweight, and nine million adults in the U.S. can be classified as morbidly obese.  It should come as no surprise, then, that employers are frequently faced with the question whether they must accommodate an obese employee under the Americans with Disabilities Act (ADA).  A federal appellate court recently said no, holding that non-physiological morbid obesity is not an impairment under the ADA.  In that case, the employee was hired as a driver/dockworker in 1990.  At the time he was hired, the employee weighed 345 pounds, and during the next five years, his weight fluctuated between 340 and 450 pounds.  In 1995, the employee was injured when a ladder rung he was standing on broke, and he took a leave of absence to recover from those injuries.  When he requested leave, the employer advised the employee of the employer's policy that (i) any employee who remains on a leave of absence in excess of 180 days would be terminated; (ii) the employee would need a physician's release before returning to work; and (iii) the employee might be asked to take a physical exam before returning to work.  When a physician indicated that the employee could not safely perform his duties upon returning to work, the employer terminated the employee.

The employee sued, alleging that his physical characteristic -- morbid obesity -- constituted an impairment that his employer regarded as affecting his ability to do his job, thereby constituting a disability under the ADA.  The court rejected that argument, holding that the employee's mere appearance was not sufficient to constitute an impairment.  Rather, to qualify as an ADA impairment, a physical characteristic (here obesity) must result in a physiological disorder.  To hold otherwise, the court said, would suggest that any physical abnormality -- being extremely tall, for example -- may be an ADA impairment.  Extending ADA protection "to all 'abnormal' (whatever that term may mean) physical characteristics," the court cautioned, would cause the ADA to become a catch-all for any claim of discrimination based on appearance, size or any other characteristic, and the statute was never intended to be that broad.  Equal Employment Opportunity Commission v. Watkins Motor Lines, Inc., No. 05-3218, September 12, 2006.

Although this case may give employers more leeway in terms of actual impairments, remember that the ADA also protects individuals who are "regarded as" disabled.  Accordingly, if the employer regarded the employee as disabled, the case could have had a different outcome.