Posted By Charles J. Cochran, Jr. on March 18, 2009
Our Federal Government has changed the rules under which employers have been operating when dealing with questions involving the Americans with Disabilities Act. The Americans with Disabilities Act was first enacted in order to provide protection to those employees and individuals who were disabled in our society. The Federal Court’s helped to clarify the definition of the word disabled, by interpreting the EEOC guidelines, which required the existence of a very serious and life altering handicap/disability to exist in order for an individual to be treated as disabled and covered under the act. Congress in 2008 determined that the definition was too strict (as well as making other determinations which we are not going into here today) and loosened up the definition so that it would cover more individuals. By taking this action a great deal of case law, which had been established since the original ADA was passed, has been made obsolete and we may expect to see a series of new determinations as the Court’s interpret future EEOC guidelines put in use to establish a skeleton for applying the new definition. Some rules will remain the same but be subject to a new interpretation most notably the definition of the word “disability” itself. Employers need to move very carefully now,where they meet the ADA requirements for application of the statute to them, so that they stay well within the bounds of this new amendment since new guidelines and interpretations of the old will be put in place by the EEOC. It is regrettable that this is happening at a point in time when the economy is in such a state of flux that businesses are fighting to keep their heads above water. Not only has the definition been changed, in both practice and application, but business must be able to use two different definitions one for the federal government and one for the State, depending upon their number of employees.
This matter has been dissected by the legal minds of our age at length so I am not going to go into that with you here today. Let us look at the practical implications of the 2008 amendments in regard to the definition of disability. What I have been trying to do is establish in my own mind a general rule to use when I first pick a matter up.
Prior to the 2008 amendments if a question under the ADA arose one way in which I might have looked at it is:
I would concentrate on the facts to determine if the alleged disability is sufficient to make the ADA applicable where it is not obvious that a disability exists sufficient to bring the matter under the act. I would also advise the Employer to enter into a meaningful discussion with the employee giving the employee ample opportunity to show they are disabled to the extent necessary to be covered by the Americans with Disabilities Act and then determine reasonable accommodation where indicated.
After the 2008 amendments I might, in certain circumstances, address the question as:
In most instances, where it is reasonable to do so, I will start with a presumption that a qualifying disability exists and advise the Employer to enter into a meaningful discussion with the employee. The element of a meaningful discussion runs through both models and is very important not only for purposes of determining a qualifying disability but it serves to help support a defense, in certain instances, to employee allegations regarding a failure to accommodate later on. Throughout my evaluation recall that I now expect to find a disability. For purposes of my investigation this means that I am assuming the burden is upon the employer to disapprove any alleged disability even though the Act does not actually impose this burden. I will still need to make a determination whether the employee is disabled, as it remains an element required for eligibility, to the extent necessary to trigger the statute but now many more opportunities exist for such a disability to be found. If the employee’s situation warrants it I will then review the Employer’s proposal for reasonable accommodation. I still retain those tools necessary to obtain the medical evidence which might be necessary to make a final recommendation to the Employer as to both disability and the reasonableness of the Employer’s proposed accommodation. I would expect that these changes to the ADA will cause Employers to make many more “reasonable accomodations” than in the past. The amendments do not shift the burden of proof to the Employer, in the actual wording of the Act, but by lowering the threshold as to what is considered a disability the amendments come very close to doing so. The legislature has clearly indicated a shift in their view of the importance of the disability element and I believe the only really safe way to handle these matters, until we have some case law to help us, is to follow their intent.
It is pretty clear the 2008 amendments have changed the way I look at these cases. By loosening up the standard and providing the much more expansive definition for disability, and by specifically discounting the importance of it, Congress has pretty much moved the question of disability, except for the most obvious cases, from the employee who was required to establish his disability to the employer who is now defending against it. Of course, in cases where I am dealing solely with the Ohio statute pertaining to disability, I would retain a modified version of the pre-2008 amendments model where a more flexible approach to the term disability would now be applied. Without additional guidance we could maintain the old standard for Ohio cases where the Federal law would not be applicable but I am concerned over where the future lies under the State statute.
I am sure the employers reading this article recognize the tremendous burden which has been imposed upon the employer by these amendments to the ADA.
I would now like to go into a little more discussion in regard to this matter.
The Americans with Disabilities Act is a Federal Statute which applies to the workplace, by application of Federal Law under the following circumstances:
- In order to be an Employer under the act you must have 15 employees for each working day in 20 or more calendar weeks.
That is all that is required to bring an Employer under the coverage of the act for ADA coverage. However, let us step a little farther along this line and look at ORC 4112.01(A) which brings to bear ADA type rules under the law of the State of Ohio.
- In order to be an Employer under Ohio law you need only have 4 employees again for each working day in 20 or more calendar weeks.
An employee has rights under the ADA which boil down to requiring an Employer to provide reasonable accommodation for any Employee whose disability meets the requirements under the Act where the reasonable accommodation will enable the employee to perform the essential (core) functions of his job with this accommodation. When dealing with any statute it is important to determine whether the person is really covered under the act. Until recent times and the 2008 amendments to the ADA the question of whether a person is disabled under the act was often the stopping point of the inquiry. Prior to the above Amendments the United States Supreme Court viewed the question of whether a person was disabled as a question of paramount importance. The earlier definition of disability was so stringent that in order to meet it a person would have to be disabled to the point that the ordinary everyday tasks which are important to life itself would need to be impaired not just some impairment that made doing their job difficult or even impossible without reasonable accommodation.
It might be best to use our national legislature’s own wording in order to describe the intent which goes along with this current amendment. Congress said (5) to convey congressional intent that the standard created by the Supreme Court in the case Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits”, and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the have complied with their obligations, and to convey that the question ofwhether an individual’s impairment is a disability under the ADA should not demand extensive analysis;of
In the 2008 Amendments the US Congress changed the old definition, which the courts had clarified, of the word disability by looking at the definition of the word disability much more expansively and making it much more likely that the employee could be considered as disabled under the ADA requirements. Since Ohio law, in addition to Ohio case law, has borrowed the definitions and interpretation from Federal Case Law we might be waiting for the next Ohio case to go through the Court system to see if the Ohio courts back away from the stricter definition of the word disability as was determined in prior case law under the Ohio statute. Of course, as the Ohio statute still stands it closely mirrors the ADA statute which existed prior to the 2008 amendments. That interpretation of the word disability in the statute remains subject to some level of review by the Ohio courts but the Courts will be hard pressed to move totally into the camp of the amendments without ohio legislation to support it. With the laxness of the current federal statute and its lack of reliance upon the importance of disability in the application of the statute I would not be surprised if Ohio courts might also become more lax in the application. I, for one, will be looking even more closely at the facts when I am solely applying the Ohio definition in those circumstances where federal application is not triggered. I feel this would be the safest way for the employer to treat this until we can see where the Ohio Supreme Court or Appellate Court(s) go with this. Of course if we get some additional guidance from the Ohio legislature the question will be answered for us. That is not to say that the new standard, because it is federal law, becomes the law for the State of Ohio in the non-federal realm but rather for anyone who is advising employers it would be best to err on the side of additional caution in making the determination of whether the individual actually is disabled according to the definition imposed upon the employer by the federal or state statute. It is a very regrettable situation where you have a state law which is much more restrictive of a right which is given under a federal statute especially where the class of people who are limited by the state statute are only determined by their number in the workplace.
Part of the problem in using a more stringent standard for the determination of disability, which is more favorable to the employee, is that for most intents and purposes when an individual employee is treated as if he were disabled then the protections of the statute could come into play. The inquiry as to whether disability exists will now become much more frequent. I believe that it is very important for the employer to early on enter into a meaningful dialogue with the employee as soon as it becomes apparent, through communication with the employee or from direct observation by the employer, that the employee is an individual who may be an individual with a disability which meets the definition under the statute. As always, great care is going to be necessary in the training of any supervisor or other investigator who might be dealing with this matter so they do not inadvertently indicate to the employee that they are considered as being disabled. By inquiring fully and meaningfully without labeling the employee as disabled the employer will maintain the most flexibility in dealing with the situation. Rather than clarifying the matter and making the application of the statute easier for the employer the 2008 amendments to the ADA have made it even more imperative that the employer carefully make their way through this minefield which has been created for them.
For the future I would expect that the focus by the Employer in these instances is going to be directed much more toward providing a “reasonable accomodation” which is carefully limited in scope to provide no more than is required under the circumstances at the least cost. Defenses focusing on the absence of a “disability” will be, except in the most obvious cases, falling by the wayside.
I handled a number of these matters where the definition of disability was the deciding factor in obtaining a no probable cause finding at the administrative level before the Ohio Civil Rights Commission/EEOC. The absence of a qualifying disability became a very powerful tool in the employer’s arsenal. While under the statute a finding that a disability exists still remains necessary the importance of it as a pivotal factor in determining whether the Act applies has been severely discounted. Further, the definition of disability has become so watered-down that I believe there will be few instances where it cannot be deemed that an employee is disabled for purposes of coverage under the Federal Act. The employer’s tool, if you will, became so powerful that the Congress pretty much removed it from the quiver at least on the federal level. As noted earlier it still remains to be seen what the State of Ohio will do with the situation.