Employment Law Watch : Employment & Labor Lawyer & Attorney : Reed Smith Law Firm

EEOC Publishes Long-Awaited Regulations Under the ADA Amendments Act

More than two years after the Americans with Disabilities Amendments Act (“ADAAA”) became effective, the EEOC has issued Final Rules and Regulations (“Regulations”) that were published in the March 25, 2011 Federal Register. The Regulations, which become effective May 24, 2011, further demonstrate the ADAAA’s objective of broadening employee coverage to the maximum extent permitted. They also continue to shift focus from whether an employee is “disabled” to whether an employer has satisfied its legislative obligations to accommodate without discriminating. 

Although the definition of “disability” remains whether a physical or mental impairment exists that substantially limits one or more major life activities; a record of such an impairment; or being regarded as having such an impairment; how “disability” should be interpreted by employers has changed.  

Coverage under the ADAAA continues to require proof of a substantial limitation, but the Regulations specify that this is not intended to be a demanding standard. The EEOC seeks to implement Congressional intent to establish consistent and workable standards by establishing “rules of construction,” including the requirements that:

• A lower degree of functional limitation be applied
• “Substantially limits” be read broadly in favor of expansive coverage
• Determining whether an impairment substantially limits a major life activity be made without regard to the ameliorative effects of mitigating measures (except for “ordinary eyeglasses or contact lenses”)
• Episodic impairments or impairments in remission still qualify as disabilities if they would when active

The Regulations also expand the definition of "major life activities" through two non-exhaustive lists. The first list focuses on activities, some of which the EEOC has already recognized, such as walking. But some are new and include sleeping, concentrating, thinking and reading. The second list focuses on major bodily functions, such as the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. 

In another broadening of coverage, the Regulations make no mention of any six-month durational requirement for establishing a disability, and instead specify that an impairment for any duration may be a covered disability.   

The Regulations also elaborate on the ADAAA’s coverage of individuals with episodic conditions or conditions in remission. They offer a non-exhaustive list of covered conditions, including cancer, post-traumatic stress disorder, major depressive disorder and multiple sclerosis.

Despite acknowledging that the determination of a disability requires an "individualized assessment," the EEOC lists conditions that will "virtually always" constitute a disability. These include cancer, cerebral palsy, diabetes, epilepsy, multiple sclerosis, major depressive disorder, bipolar disorder, obsessive compulsive disorder and autism. 

“Regarded as” claims also gain support under the Regulations. Such claims may be based upon an alleged perception of impairment, irrespective of whether that impairment is perceived as an actual disability. Though employers need not reasonably accommodate an employee with a “regarded as” disability, they must accommodate employees with a “record of disability,” unless they establish that it would be an undue burden.

Employers consequently should interpret “disability” broadly and focus on properly and fully participating in the interactive process. Employers should use the time before the Regulations become effective to review and sharpen their reasonable accommodation policies and procedures, and to provide training to management, human resources and legal staff on the ADAAA and these EEOC Regulations. 

Feel free to direct any questions or concerns about the ADAAA and the Regulations to the authors of this Alert, or the Reed Smith attorney with whom you work regularly.

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UK employment law seems to be in a constant state of flux and this year is no exception. Summarised below are the main legislative changes that employers need to know about this April. There are some urgent action points to consider before 6 April regarding serving any last minute retirement notices and the timing of termination payments.

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Guidance on the delayed UK Bribery Act 2010 has now been published. The guidance sets out what procedures a commercial organisation should adopt to prevent persons associated with it from committing offences under the Act. The breadth and importance of this legislation means that companies and their senior officers would be well advised to familiarise themselves with the effects of this new law.

In particular, the Act provides that "senior officers" (including non-board level managers) can "individually be held criminally liable" for a company’s bribery offences. The Act also includes extensive extra-territorial powers of prosecution similar to those found in the U.S. Foreign Corrupt Practices Act ("FCPA") and the offences apply to acts of bribery in both the public and private sectors (unlike the FCPA).

Reed Smith has produced a briefing note on the new Guidance. This new briefing note complements our previous briefing note on the substantive elements of the Act.

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The United States Supreme Court has held that under the Fair Labor Standards Act (“FLSA”), the federal law that requires proper payment of wages and overtime pay, an employer cannot retaliate against an employee who complains about a possible violation of that law, even where the complaint is oral rather than in writing. Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (Mar. 22, 2011).

The FLSA provides that employers cannot “discharge or otherwise discriminate against an employee because such employee has filed any complaint or otherwise instituted any proceeding under or related to the [FLSA].” [emphasis added] The employer in Kasten argued, and the U.S. Court of Appeals for the Seventh Circuit had found, that by using the phrase “filed any complaint,” Congress meant to protect only those employees who put their complaints in writing. The Supreme Court disagreed, finding that interpretation would deter employees, particularly those who are uneducated or illiterate, from coming forward with good-faith concerns about possible violations of the law. At the same time, however, the Court recognized that the reference to filing a complaint “contemplates some degree of formality,” and that for a complaint to be protected, it “must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute.”

The employer also argued that employees should be protected only if they complain to government agencies, not to their employer. Although the Court declined to address that issue, its opinion in this case, and in others where the Court has broadly interpreted anti-retaliation provisions, leaves little doubt that employees who complain about possible FLSA violations – internally or externally, orally or in writing – are protected from retaliation.

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This post was written by Lisa M. Carvalho, Lucas Liben and George M. Linge.

This may be one of the abiding truths of the 21^st Century: the pervasiveness of modern communication technology has revolutionized how business is conducted, law is practiced, and life is lived. Nevertheless, courts remain protective of communications between an attorney and his or her client almost without regard to the form that communication takes.

Since the middle of the past decade, courts have faced the question of whether the attorney-client privilege can be abrogated when an employee uses employer-provided communication technology to email the employee’s personal attorney. Courts examine a variety of factors to answer this question, including:

• Whether the employee was operating an employer-owned computer or his or her own
• Where the computer was located
• Whether the email was transmitted through a company account or a personal account such as Gmail, Yahoo or Hotmail
• Whether the employee’s personal email account was password-protected. Perhaps most importantly, courts look to the language of the employer’s policy on email usage, particularly the policy’s stance on personal use, monitoring of email accounts and web activity, and retrieval of information.

Employers must decide whether the advantage of possibly accessing communications between a former employee and his or her counsel outweighs the disadvantages associated with the kind of communications policy necessary to abrogate attorney-client privilege. On the one hand, an employer's interests in information security and full control of its systems mitigates in favor of its having fully transparent access to its employees' electronic communications on the employer's systems, and would have the incidental benefit of possible access to employee communications that are against the employer's interest. On the other hand, an employer may wish, in some limited fashion, to be sensitive to its employees' privacy rights in the context of today's mobile workforce, and may choose not to exert an aggressive information security policy that would go so far as to permit the invasion of the attorney-client privilege.

To read more about the recent rulings and the two-part rule that seems to be emerging, please click here.

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In our last update, we reported that the UK Government had issued its response to its consultation “Phasing out the Default Retirement Age”, confirming that from 1 October 2011 there will no longer be a default retirement age (DRA) of 65. Draft Regulations were laid before Parliament in February but after much criticism over how they should be interpreted, a revised draft of those Regulations (Employment Equality (Repeal of Retirement Age) Regulations 2011) have been made available and are due to come into effect 6 April 2011. Several of the Government’s original proposals set out in their response to the consultation (and as set out in our last update) have been changed. In particular, changes concern when the last notice of retirement can be served and when the last date it can expire. There was some confusion over retirement of the over 65s but this was a drafting error and has been rectified in the revised draft Regulations.

Confusion about when notice of retirement can expire

Under the current rules, an employee must be given a minimum of six months’ and a maximum of twelve months’ notice to be compulsorily retired. The Government first indicated in its response to its consultation that because the DRA will not apply from 1 October 2011, an employer who wishes to effect a compulsory retirement would need to issue the retirement notice by 30 March 2011 (or before 6 April 2011 under the “short notice” rules). It was understood that this meant that such employees would have to be retired on or before 30 September 2011.

On 17 February 2011, ACAS issued a Guidance update indicating this view was not entirely correct. The ACAS Guidance indicates that employers will in fact have until 5 April 2011 (but no later) to issue notice to an employee of compulsory retirement and that notice (being no less than six and no more than 12 months under the current rules) may run its course and so may expire after the 30 September 2011 deadline. Short notice notifications will not be permitted on or after 6 April 2011. The revised draft Regulations confirm this. 

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