Kohrman Jackson & Krantz P.L.L.

Handling Employee Medical Issues Under the Americans with

Disabilities Act Amendment Act of 2008
 Sam Stricken
y Sam Stricken has worked on an assembly line at the Perilous Pultrusion Company’s
plant for fifteen years.
y Five years ago, Stricken was in an automobile accident and injured his back. He
was out on a medical leave of absence for two months. He recovered, was cleared
to return to work by his doctor without restriction, and returned to his regular job. His
back bothers him from time to time, but he has only taken a few days off as a result of
it.
y Two years ago, Stricken suffered a heart attack and had arterial bypass surgery.
While his heart muscle was damaged, he did recover from the surgery and, once
again, he was cleared to return to work by his doctor without restriction, and returned
to his regular job.
y Since the heart attack, Stricken is not as strong as he used to be. When he works
for a long time or on a particularly strenuous activity, he suffers shortness of breath
and dizziness, and he sometimes develops muscle cramps because of his heart
condition. He takes regular medication for his heart.
y In early January, while lifting a package at work, Stricken slipped and fell and twisted
his back. Surgery was required to repair his back. He has been out for twelve
weeks, and is now ready to return to work.
Old Definition of “Disability” Under the
American with Disabilities Act
y A physical or mental impairment that substantially
limits one or more of the major life activities of an
individual;
y A record of such an impairment; or
y Being regarded as having such an impairment.
New Definition of Disability Under the
ADAA of 2008
y A physical or mental condition that substantially limits
one or more major life activities
y A record of such an impairment; or
y Being regarded as having such an impairment.
 Amended Definition of “Disability”
Under the ADA Amendment Act of 2008
y Actual Disability: a physical or mental condition that
substantially limits one or more major life activities
y Definition of major life activity added.
y Lower standard for substantially limits established.
y “Regarded as” Disabled
y If an individual is subject to discrimination because of an
actual or perceived physical or mental impairment, it
does not matter whether the impairment limits or is
perceived to limit a major life activity.
y A record of impairment
y The ADAAA of 2008 makes no change.
 Actual Disability
Physical or Mental Impairment
y Affects any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss
affecting one or more body systems, such as
neurological, musculoskeletal, special sense
organs, respiratory (including speech organs),
cardiovascular, reproductive, digestive,
genitourinary, immune, circulatory, hemic,
lymphatic, skin and endocrine.
y Any mental or psychological disorder, such as
intellectual disability (formerly termed mental
retardation), organic brain syndrome, emotional or
mental illness, and specific learning disabilities.
 Actual Disability
Physical or Mental Impairment (cont.)
y The definition of “impairment” in the new
regulations is almost identical to the definition in
EEOC’s original regulations addressing the ADA,
except that the immune and circulatory systems
have been added to the list of body systems that
may be affected by an impairment, because these
systems are specifically mentioned in the ADAAA’s
examples of major bodily functions.
 Actual Disability
Substantially Limits
y Lower degree of functional impairment than
previously used by the Courts under the prior
definition of disability.
y To be construed broadly to give maximum effect –
now much easier to prove.
y Must apply the Nine Rules of Construction.
 The Nine Rules of Construction
1. Substantially limits shall be construed broadly and is not meant to
be a demanding standard.
2. An impairment is a disability if it substantially limits the ability of an
individual to perform a major life function as compared to most
people in the general population.
3. The emphasis should be on whether employer has complied with
their obligations and whether discrimination has occurred so
substantially limits should not demand excessive analysis.
4. An individualized assessment is required, but should be applied at
a degree of functional limitation that is lower than the prior
standard for substantially limits.
5. The comparison between an affected individual’s performance and
that of most people in the general population usually will not
require scientific, medical, or statistical analysis.
 Nine Rules (cont.)
6. The determination shall be made without regard to ameliorative
effects of mitigation measures (with the exception of eyeglasses
and contacts).
7. An impairment that is episodic or in remission is a disability if it
would substantially limit a major life activity when active.
8. An impairment that substantially limits one major life activity need
not substantially limit other activities.
9. The effects of an impairment lasting or expected to last fewer than
six months can be substantially limiting for purposes of disability or
record of disability (but does not apply to regarded as disabled).
 Actual Disability
Major Life Activity
y The EEOC has provided a non-exhaustive list of examples
of major life activities: caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking,
standing, sitting, reaching, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking,
communicating, interacting with others, and working.
y Major life activities include the operation of major bodily
functions, including functions of the immune system,
special sense organs and skin, normal cell growth, digestive,
genitourinary, bowel, bladder, neurological, brain, respiratory,
circulatory, cardiovascular, endocrine, hemic, lymphatic,
musculoskeletal, individual organs, and reproductive
functions.
 “Regarded As”
y An employee is
regarded as disabled if
the employer makes
an employment
decision based on an
actual or perceived
impairment (except
where impairment is
transitory and minor).
Determining When Disabled
Reasonable Accommodation
 What do the
Amendments Change?
Actual and historical disabilities
-vs-
“Regarded as”

Mitigating measures
and
Direct threat
 Interactive Process
y Plain English
y Oral or written
y Requests “on behalf of” count
y Informal process
y Medical documentation
y Reasonable ≠ preferred
y Timing of response
 Exemplar Accommodations
y Job restructuring
y Modified or part-time schedule
y Modified workplace policies
y Reassignment
y Telecommuting
y Assistive technology
y Leaves of absence
Beware Medical Leaves
 Undue Hardship
y Nature and cost

y Employer’s resources and size

y Type of operation

y Impact of accommodation
Tying It Together
 Takeaways
y Reasonable
accommodation
policy

y Manager &
Supervisor
Training
“Regarded As” Disability
 “Regarded As” Disability
1. Definition of “Regarded As”

y ADAAA retains definition of “disability” as including being

regarded as having an impairment

y Individual has been subjected to an action prohibited by the

ADA as amended because of an actual or perceived
impairment that is not both “transitory and minor.”
 “Regarded As” Disability
2. Substantial Impairment of Major Life Activity No Longer
Required

y Regarded as having a disability if company takes an action

prohibited by the ADA (e.g., termination, demotion…) based
on an actual or perceived impairment, whether or not that
impairment substantially limits, or is perceived to
substantially limit, a major life activity.

y Original ADA required person to show that entity believed the

actual or perceived impairment substantially limited
performance of a major life activity
 “Regarded As” Disability
y Regarded as any time entity takes a prohibited action
against individual because of actual or perceived
impairment, even if entity asserts, or is able to establish, a
defense to the action
 “Regarded As” Disability
3. “Transitory and Minor” Defense

y If the entity can show impairment is both transitory and

minor, then a “regarded as” claim fails
y Transitory – an impairment with an actual or expected
duration of 6 months or less
y To prevail, entity must prove that the impairment was
transitory and minor when viewed objectively
 “Regarded As” Disability
4. Reasonable Accommodation

y An employer need not to provide reasonable

accommodation to an individual who meets the “regarded
as” prong of the definition of disability

y Where individual is not challenging an entity’s failure to

make a reasonable accommodation, the evaluation of
coverage can be made solely under the “regarded as”
prong of the definition
 “Regarded As” Disability
5. Meeting “Regarded As” Prong Is Not The End of the Story

y Meeting the “regarded as” standard does not mean that the
entity has discriminated against the individual
y Just means that the person is an individual with a
disability entitled to the protections of the ADA
y Person still needs to be qualified for the job
y Can perform the essential functions of the job
y Entity may have a defense such as direct threat or where
action was required by another federal law (e.g., a law
prohibiting a person with certain impairments from
holding certain jobs)
y Individual must still prove that entity engaged in unlawful
discrimination under ADA; 6th Circuit “but for” standard
 “Regarded As” Disability
6. “Regarded As” Hypothetical

y Sam Stricken returns to work after medical leave

y Sam’s work performance deteriorates
y Sam is written up, then terminated for poor performance
y Sam sues alleging “regarded as” disability discrimination
y Analysis
y Alleges “regarded as”
y Still has to show qualified (perform essential functions)
y Still has to show the decision was made because of his
perceived disability
 The Bermuda Triangle
ADA

FMLA WORKERS’
COMPENSATION
 Why is the Interaction Between These
Laws Important?
y The majority of unscheduled and scheduled absences
are related to the illness of employees or their family
members. One, both, or all three of these laws may be
involved.

y Violations of these laws may result in lost wages, back

pay, reinstatement, retroactive benefits, compensatory
damages, and punitive damages.
 Scope and Purpose of Each Law
y The ADA prohibits discrimination against applicants and employees
who are “qualified individuals with a disability”.

y The FMLA sets minimum leave standards for employees for the birth
and newborn care of a child, placement of a child for adoption or
foster care, to care for an immediate family member with a serious
health condition, and for the employee’s serious health condition.

y Workers’ Compensation laws provide for payment of compensation

and rehabilitation for workplace injuries and minimize employer
liability.
 Important Areas of Interplay Between
the Three Laws Are:
y Employer Coverage
y Employee Eligibility
y Length of Leave
y Medical Documentation
y Restricted or Light Duty
y Fitness-to-Return-to-Work Certification
y Benefits While on Leave
y Reinstatement
 Employer Coverage
y ADA – 15 or more employees for 20 weeks during
current or preceding calendar year (But note: similar
Ohio law covers smaller employers).

y FMLA – 50 or more employees within a 75-mile radius

for at least 20 weeks during current or preceding
calendar year.

y Workers’ Compensation – Applies to most, even small

employers. State law governs.
 Employee Eligibility
y ADA – an employee (or applicant) who is disabled as defined by the
ADA, is qualified for the position and can perform the essential
functions of the position with or without a reasonable
accommodation.

y FMLA – an employee who has worked at least 12 months and 1250

hours prior to the start of the leave and who works at a worksite
where there are 50 or more employees within a 75-mile radius.

y Workers Compensation – an employee who has an injury arising out

of or in the course of employment with state law exceptions possible
for willful misconduct or intentional self-inflected injuries, willful
disregard of safety rules, or intoxication from alcohol or illegal drugs.
 Length of Leave
y ADA – No specific limit for the amount of leave that
would be provided as a reasonable accommodation that
does not create an undue hardship on the employer.

y FMLA – 12 weeks in the 12 month period as defined by

the employer.

y Workers’ Compensation – No specific limit for the

amount of leave an injured worker may have.
 Medical Documentation
y ADA – Only medical examinations or inquiries regarding
an employee’s disability that are job-related and limited
to determining ability to perform the job and whether an
accommodation is needed and would be effective.

y FMLA – Medical certification of the need for the leave not

to exceed what is requested in the Department of Labor
(DOL) Medical Certification Form.

y Workers’ Compensation – Medical information that

pertains to the employee’s on-the-job injury.
 Restricted or Light Duty
y ADA – Required to be offered if it is a reasonable
accommodation that does not create an undue hardship
on the employer.

y FMLA – Cannot be required

y Workers’ Compensation – Ought to be offered if

available as it may eliminate the employee’s entitlement
to the wage replacement benefit.
 Fitness-to-Return-to-Work Certification
y ADA –Permitted as long as the medical examination and
inquiry is job-related and necessary to determine
whether the employee can perform the essential
functions of the job.

y FMLA – Can only be required under a policy or practice

that requires employees who have been on a similar
type of leave of absence

y Workers’ Compensation – May be and is typically

required.
 Benefits While on Leave
y ADA –No specific requirements but cannot discriminate and must
provide same benefits as those provided to employees on non-ADA
leave of absence.

y FMLA – Health coverage must be continued at same level as prior to

the leave. Benefits other than health benefits are determined by the
employer's established policy for providing such benefits when the
employee is on other forms of leave (paid or unpaid, as appropriate).

y Workers’ Compensation – Not required to be continued unless run

concurrently with FMLA leave.
 Reinstatement
y ADA –Required reinstatement to previous job unless
doing so would create an undue hardship on the
employer.

y FMLA – Required reinstatement to the same or an

equivalent job. NO undue hardship exception.

y Workers’ Compensation – No reinstatement rights under

most state laws, except for retaliatory discharges.
Sam Stricken and the Bermuda Triangle
y A 15 year employee, history of back and heart problems,
not as strong as he used to be, takes medication for his
heart.

y New back injury, off for 12 weeks and is now ready to

return.
 ?

• What Does the Employer Want To Do?

• Does the Company Get Trapped in the

Bermuda Triangle?
 Conclusion
To Avoid Getting Lost in the Bermuda
Triangle …

Analyze the Facts Under Each of the

Three Laws
 Contact Information
Alan Rauss, Partner, 216.736.7221 or amr@kjk.com

Rob Gilmore, Partner, 216.736.7240 or rsg@kjk.com

Jon Hyman, Partner, 216.736.7226 or jth@kjk.com

Candice Miller, Associate, 216.736.7272 or cbm@kjk.com