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Ms. Pohlid

Hospitality Law

Disability Workplace Discrimination Synopsis

By Kathleen Pohlid, Founder and Managing Member, Pohlid, PLLC

American workers with disabilities, who satisfy the essential requirements for their job, have greater protections under the Americans with Disabilities Act Amendments to obtain accommodations in their employment. The ADAAA shifted the primary focus from Does the employee have a disability? to Has the employer complied with their obligations? and Did discrimination occur? This shift necessitates that employers both know and comply with their obligations under the ADA Amendments and the ADA revised regulations issued by the Equal Employment Opportunity Commission.

The ADA, enacted in 1990, provides legal rights to persons with disabilities including access to public and commercial facilities, transportation, state and government services and protection against discrimination in their employment. The ADA Amendments, which went into effect on January 1, 2009, kept the same definition of disability but greatly expanded how terms under the ADA are interpreted. The EEOC revised regulations went into effect on May 24, 2011. All of these changes broadened the employee protections under the ADA and impose important obligations for employers.

Employer Obligations

Employer" is defined under the ADA to include those employers who are engaged in interstate commerce with 15 or more employees, during 20 or more weeks in the current or past calendar year. "Employer" may include a private employer, employment agency, labor organization or joint labor-management committee.

Under the ADA, employers are prohibited from discriminating against employees due to their disability and from subjecting them to a workplace in which they are harassed on the basis of their disability. Unlawful discrimination includes discrimination in recruitment, advertising and application procedures and conditions of employment including hiring, promotion, tenure, demotion, transfer, layoff, compensation, assignments, position, seniority, leave, and benefits.

The ADA also prohibits qualification standards and tests related to uncorrected vision unless the requirements are job related for the position and are consistent with business necessity. Employment discrimination can occur if the employer fails or refuses to provide a qualified employee or applicant for employment with a reasonable accommodation.

Under the ADAAA, employers are required to act proactively and to engage in an interactive process with employees to make reasonable accommodations for the employee's disability even if the employee does not request it. The regulations specify that reasonable accommodations may include: making existing facilities accessible to persons with disabilities; job restructuring and changes in work schedules; modifications of equipment; training materials; and interpreters.

The ADA also prohibits employers from requiring employees to undergo medical examination or testing except in specific circumstances. 29 C.F.R. 1630.14. Drug testing to determine whether an employee is using an illegal drug is not considered a medical examination. 29 C.F.R. 1630.14(c)(1).

Unless permitted by 29 C.F.R. 1630.14, employers are not permitted to require employees to undergo a medical examination or to make inquiries as to whether an employee has a disability or as to the nature and severity of a disability. Psychological counseling and evaluation may fall within the definition of medical examination.

In Kroll v. White Lake Ambulance Authority, 691 F.3d 809 (6th Cir. 2012), a federal court of appeals reversed a district court decision and held that an employer subjected an employee to medical testing which the employer required following an outburst at work. The employee worked as an emergency medical technician and began romantically involved with a co-worker, which affected her work. After an incident in which the employee screamed on the phone at a man while she was driving a patient in an emergency status with lights and sirens her supervisor ordered her to attend counseling. The court of appeals reversed the trial court decision that the counseling was not a "medical examination." The Court distinguished psychological tests that are designed to identify a medical disorder or impairment are medical examinations from psychological tests designed to measure personality which are not medical examinations and may be permitted, if it is "job related" and there is a "business necessity." In this case, the Court held the testing is a medical examination and remanded the case for determination as to whether it fell within a permitted exception under the ADA.

Employers should also be aware that the ADA also applies to job applicants. Employers are not permitted to conduct a medical examination of an applicant or to make inquiries as to whether they have a disability or the nature and severity of their disability. 29 C.F.R. 1630.13. Also, the ADA may require employers to provide job applicants with reasonable accommodations in testing and completion of job applications.

In Jenkins v. National Board of Medical Examiners, No. 08-5371 (6th Cir. Feb. 11, 2009), a third year medical student, who was diagnosed reading disorder at a young age, asked for additional time to complete tests due to his reading disorder. When the National Board of Medical Examiners refused his request, the student filed an action under the ADA. The Sixth Circuit Court of Appeals reversed the district court decision finding he was not disabled and held that he was disabled and subjected to continuing discrimination on the basis of the denial of his accommodation request.
Definition of Disability

The ADA applies a three-prong definition for "disability" as either: (1) "[a] physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (2) [a] record of such impairment; or (3) [b]eing regarded as having such an impairment." 29 C.F.R. 1630.2(g). This definition has not changed under the ADAAA, however, the interpretation of each three prongs has broadened under the ADAAA and the revised EEOC regulations.

A "physical or mental impairment" is defined to include any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, or any mental or psychological disorder. 29 C.F.R. 1630.2(h). The term "substantially limits" is to be "construed broadly in favor or expansive coverage." 29 C.F.R. 1630.2(j)(1)(i).

The determination as to whether a disability is substantially limiting requires an individualized assessment. The disability may include impairments that are episodic or in remission or which last fewer than six months. For example, Hoffman v. Carefirst of Fort Wayne, Inc., No. 1:09-CV-251 (N.D. Ind. Aug. 31, 2010), the court held that renal cell carcinoma in remission may constitute a disability under the ADA. After the employee had been released for work with no restrictions following cancer treatment, his employer increased his work hours from 40 to 65-70 hours per week. When the employee provided a doctor's note stating he could not work 65-70 hours for health reasons, the employer fired him. The judge held the employee stated a claim under the ADA by alleging that his disability established by his cancer in remission which would have substantially limited a major life activity when it was active.

ADA protections may also extend to psychological conditions and accommodations for employees suffering from post-traumatic stress. In Grizzell v. v. Cyber City Teleservices Marketing, Inc. (MD Tenn. June 25, 2010), a judge denied an employer's motion to dismiss an ADA claim brought by a former employee who had been previously diagnosed with post-traumatic stress disorder. The employee, who alleged he was traumatized after he witnessed the death of a young girl while in the Philippines for job training, asked his employer for PTSD treatment. The employer refuses and a few weeks later, fired the employee. The judge held a prima facie case for discrimination had been alleged.

Additionally, the impairment is not required to prevent or significantly restrict the individual from performing a major life activity. It will suffice if the impairment "substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." 29 C.F.R. 1630.2(j)(1)(ii). The determination as to whether an impairment substantially limits a major life activity is also to be made without considering the ameliorative effects of mitigating measures (except for ordinary corrective lenses which may be considered). For example, an employee who may be considered disabled without taking prescribed medication, but who with medication is not substantially limited in performing a major life activity, is to be considered disabled without regard to the medication. Mitigating measures may include: medication, appliances, prosthetics, auxiliary aids or services, learned behavioral or adaptive neurological modifications or psychotherapy, behavioral therapy or physical therapy.

A past history of an impairment that substantially limited a major life activity could include references to such impairments in education, medical, or employment records. It may also include documented misclassification or misdiagnosis of a disability.

"Regarded as" means the individual has been subjected to an action prohibited by the ADA. In order to fall within the "regarded as" prong, the person must have an actual or perceived impairment which is not both transitory and minor and must have been discriminated on the basis of disability. Merely establishing that an individual is regarded as having an impairment does not, by itself, establish liability. A "regarded as" claim requires proof that the covered entity discriminated on the basis of disability. Where an individual is not challenging a failure to make reasonable accommodation, the evaluation of coverage may be made solely under the "regarded as" prong which does not require the showing of an impairment that substantially limits a major life activity. Defenses to an ADA Claim

Employers may assert several defenses to an ADA claim, including that the action was justified by a legitimate nondiscriminatory action, making accommodation poses a direct threat to the health & safety of others, undue hardship, and conflict with other federal laws.

Whether or not a person poses a direct threat will depend upon several factors including: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. An employer may establish undue hardship by establishing that the accommodation would be "unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business." However, employers may not rely upon this defense if the employer is able to obtain funding from other sources.

Federal Tax Incentives

The federal government offers tax incentives for employers who make their workplace more accessible to persons with disabilities. These incentives include: the Small Business Tax Credit (Internal Revenue Code (IRS) Section 44: Disabled Access Credit) which provides a tax credit up to $5,000 annually to a small business with either $1 million or less in revenue or 30 or fewer full-time employees for the cost incurred in providing reasonable accommodations, the modification of existing equipment or removal of architectural barriers; the Work Opportunity Tax Credit (IRS Section 51) which provides a tax credit to employers of up to $2,400 for each qualifying employee hired that is referred from vocational rehabilitation agencies and receiving supplemental security income; and the Architectural/Transportation Tax Deduction (IRS Section 190 Barrier Removal) which provides an annual deduction of up to $15K for businesses of any size for the cost of removing barriers. Employers and businesses must consult with their tax advisor and attorney for specifics as to whether they qualify for the tax credit/deduction.

Tips for compliance

Employers should establish a comprehensive ADA compliance program for their workplace. This includes ensuring that each job has documented essential functions. The essential functions should be based upon objective criteria to enable and objective determination as to whether employees have met those requirements with or without reasonable accommodations. The program should include a documented policy confirming the employer's commitment to provide reasonable accommodation. The policy should encourage employees to request accommodation when necessary and specify how they can do so. The policy must be effectively communicated to employees and the date this is done should also be documented.

Employers should also document the interactive process with employees to include the reasonable accommodations provided. The documentation should include the dates of employee requests for accommodation and the dates of employer responses. Employee requests should receive prompt attention. Employers should ensure all management and supervisors are trained in ADAAA requirements. Employers must not question applicants or prospective employees as to whether they have a disability, but focus on whether the employee can meet the job requirements.

Since the ADAAA and the revised EEOC regulations shift the focus to determining whether the employer has complied and whether discrimination has occurred, it is crucial that employers establish an ADA compliance program for their workplace and ensure that it makes reasonable efforts for accommodation.

Kathleen Pohlid is the founder and managing member of the law firm of Pohlid, PLLC in the Nashville, Tennessee area. She advises business clients in matters including employment, occupational safety and health, Americans with Disabilities Act (accommodation & discrimination) and regulatory compliance. Her goal is to enable clients to comply with the myriad of state and federal laws to succeed in their business, mindful of the challenges facing businesses and the importance of cost effectiveness. She has advised and represented businesses in a variety of industries including restaurants, hotels, and other entities in the tourism and hospitality industries. She has over 20 years of combined federal government and private sector experience in employment law and litigation. She holds an AV® rating from Martindale-Hubbell (highest for professional competency and ethics), a B.S. degree from the U.S. Naval Academy and a J.D. from Samford University. Ms. Pohlid can be contacted at 615-369-0810 or kpohlid@pohlid.com Please visit http://www.pohlid.com for more information. Extended Bio...

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