Employee Medical Files (6/11)

Should employees’ medical files be kept in a locked file cabinet and in a locked office? We can provide a locked file cabinet, but having a separate locked office may be a bit difficult.

A separate locked file cabinet is probably sufficient as long as there is limited access to the cabinet.  The Americans with Disabilities Act (ADA) requires covered employers to keep medical information in confidential medical files that are separate from regular employee personnel files.  (See 42 U.S.C. §12112(d).)  The Equal Employment Opportunity Commission (EEOC), in its ADA Technical Assistance Manual, sect. 6.5, has suggested that an employer should keep medical information in a separate, locked cabinet apart from personnel files and allow only limited access to the cabinet.  Further, if you keep medical information in electronic files, it must be similarly protected, for example by storing it in a separate database (with proper protections).        In addition, the information must be treated as confidential and generally may be released only when:  (1) supervisors and managers should be informed about any work restrictions or needed accommodations; (2) it is appropriate to inform first aid and safety personnel because the employee’s medical condition may require emergency treatment; or (3) government officials are investigating compliance with the ADA.  (See 42 U.S.C. §12112(d); 29 C.F.R. §1630.14(c)(1).)  The same requirements for separating medical files from regular personnel files and keeping them confidential also apply under the Family and Medical Leave Act.  (See 29 C.F.R. §825.500(g).)

It’s Official - Everyone (Almost) is Disabled Now Under New ada Regs (5/11)

The final ADA regulations confirm that many more individuals will indeed be covered by that law.  Find out the nine “rules of construction” you must use to determine who is disabled and the five steps you can take to implement these new requirements.

After months of delay, the Equal Employment Opportunity Commission (EEOC) has finally issued its updated regulations under the Americans with Disabilities Act (ADA).  The agency was directed to revise the regulations after the passage of the ADA Amendments Act (ADAAA) in September 2008 so that more illnesses and conditions would be covered as protected disabilities as required by the ADAAA.  The intent of the Act was to broaden the scope of the ADA by expanding the definition of disability.  (As a reminder, the ADA, which was originally passed in 1990, as amended prohibits employers with 15 or more employees from discriminating against qualified individuals on the basis of disability and requires covered employers to provide reasonable accommodation to qualified individuals with known disabilities in all aspects of employment, unless the accommodation would cause undue hardship.)      According to the EEOC, the final regulations, which take effect May 24, 2011, will make it “much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of disability.”  Still, the final regulations retreated from the approach taken in the proposed regulations which went so far as to provide a list of certain medical impairments that would always be disabilities.  Instead, the final regulations provide nine “rules of construction” to help you determine which conditions “substantially limit” an individual and should be treated as disabilities and also indicate that there are some impairments that usually will meet the disability definition.      Make no mistake, though, these final regulations make a significant expansion to the ADA’s disability definition.  They will result in many more internal complaints, more EEOC investigations, more ADA claims being filed, and generally more compliance headaches all around.   As a result, you should be prepared for more of your employees and applicants to be protected under the ADA and should fine-tune your accommodation process to ensure you are complying with your legal obligations.  Below are ten questions and answers about the new regulations (including the ning “rules of construction”) as well as five tips for implementing their requirements.  In addition, you will find a list of policies that should incorporate the ADA.   Background to the Final ADA Regulations   When the ADAAA took effect on January 1, 2009, the law made it easier for people to qualify for protection under the ADA by expanding the definition of “disability” to cover more impairments.  However, the new law did not provide a complete new disability definition for employers and other covered entities to apply.  Rather, the ADAAA reversed three Supreme Court decisions that had interpreted the definition of disability very narrowly so that only individuals who were severely restricted in their ability to perform major life activities were entitled to ADA protections.        The EEOC initially voted to issue proposed regulations in December 2008 (prior to President Obama’s inauguration), but the vote failed because the then four-member Commission split two to two along party lines.  (Normally, the EEOC has five commissioners appointed by the President and confirmed by the Senate, but in December 2008, it had only four members at the time of the vote.)  Accordingly, the EEOC could not issue the proposed rule.  It then took the agency until September 23, 2009, to issue proposed regulations, at which time interested parties had several months to comment on the requirements.  Over 600 comments on the proposed regulations were made by representatives of employers, employees, unions, and the disabled.  The EEOC voted to issue the final rule in December 2010, and sent it for review to the Office of Management and Budget.  The final rule was then published in the Federal Register on March 25, 2011.      This is the first major revision to the ADA regulations since they were issued in 1991.  So, in addition to providing revisions to the ADA regulations, the EEOC also has made changes to the Appendix to the ADA regulations, referred to as the Interpretative Guidance on Title I of the ADA.  The EEOC also has issued several guides for businesses that explain both (see “For More Information,” below, for links to those guides).   Ten Key Issues in Final Regulations  The final regulations are 40 pages long and include commentary to explain the EEOC’s choices in addition to the actual regulatory changes.  Note that like the ADAAA itself, the final regulations primarily address the question of who is disabled.  They do not make changes to interpretations regarding other major ADA issues such as the use of medical examinations and testing, the accommodation process, the undue hardship defense, or the treatment of illegal drug use.  Below are ten questions and answers addressing the major changes. 1.     What is a disability under the new ADAAA and final regulations? The ADAAA left the basic definition of what is a disability unchanged, though it did expand the “regarded as” prong (discussed in # 9, below).  Under the ADA, a disability is:  (a) a  physical or mental impairment that substantially limits one or more major life activities (also referred to by the EEOC as the “actual disability” prong); (b) a record of a physical or mental impairment that substantially limits one or more major life activities; or (c) being regarded as having an impairment (and not necessarily one that is substantially limiting) and an employer takes action prohibited by the ADA because of an actual or perceived impairment that is not both “transitory and minor” (see also # 9, below).  “Transitory” is defined as lasting or expected to last six months or less. 2.     How is the definition of “major life activity” changed? The term “major life activity” was not defined in the original ADA, and so it was left to the EEOC and courts to define this concept.  Now, under the ADAAA, the term is specifically defined in the statute to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.  The term also now includes the “operation of a major bodily function,” such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.       The final regulations also add to the list of major life activities sitting, reaching, and interacting with others, and further defines “operation of major bodily function” to include hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular functions.  The regulations also emphasize that the list of major life activities is intended to be illustrative, not exhaustive, so other activities may be covered.  Further, to be considered a major life activity, the activity does not have to be of “central importance to daily life.”   3.     What does “substantially limits” now mean? The term “substantially limits” also was not defined in the original ADA, so the EEOC and courts defined the term in such a manner as to restrict who was considered disabled.  The Supreme Court’s decision in Toyota Motor Mfg. Ky., Inc. v. Williams, 534 U.S. 184 (2002), determined that the term “substantially limited” means “considerably” or “to a large degree” limited.  The ADAAA specifically overturned the Supreme Court’s decision because it “narrowed the broad scope of protection intended to be afforded by the ADA.”  Further, the ADAAA indicates that the original EEOC regulations interpreting the term to mean “significantly restricted” expressed “too high of a standard” and are “inconsistent with Congressional intent.”  Under the ADAAA, the term also is not specifically defined, except that the Act directs the EEOC to define the term “consistently with the findings and purposes” of the ADAAA, i.e., more broadly to include more individuals with illnesses and medical conditions than have been covered in the past.        The final regulations now provide nine “rules of construction” you should consider to determine whether an impairment substantially limits an individual in a major life activity.   The regulations also state that these nine rules are intended to provide for “more generous coverage and application of the ADA’s prohibition on discrimination through a framework that is predictable, consistent, and workable.”   4.     What are the nine rules of construction? The nine rules are: (1)     The term “substantially limits” should be interpreted broadly “in favor of expansive coverage” 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 activity as compared to most people in the general population.  However,   an impairment does not have to prevent or significantly or severely restrict an individual from performing a major life activity to be considered substantially limiting.  Still, not every impairment will be considered a disability. (3)     The issue of whether an impairment substantially limits a major life activity should not require extensive analysis.  The primary object of attention should be whether the employer has complied with its obligations and whether discrimination has occurred, not whether an impairment is substantially limiting. (4)     The determination of whether an impairment is substantially limiting still requires an individualized analysis.  However, the regulations also emphasize that the standard for what is substantially limiting is lower than under the ADA prior to its amendment. (5)     The determination of whether an impairment is substantially limiting does not require the use of scientific, medical, or statistical analysis, though this type of evidence may be used “where appropriate.” (6)     The determination of whether an impairment is substantially limiting must be made without regard to the ameliorative effects of mitigating measures, except for ordinary eyeglasses and contact lenses.  (The ADAAA specifically overruled two 1999 Supreme Court decisions, Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), which allowed employers to consider mitigating factors such as prosthetics and medication when determining whether a person was disabled.)  The ADAAA and the final regulations include several examples of mitigating measures that should not be considered, such as medication; medical supplies and equipment; low-vision devices (except ordinary eyeglasses or contact lenses); hearing aids; mobility devices; oxygen therapy equipment and supplies; prosthetics devices; learned behavioral or adaptive neurological modifications; and psychotherapy, behavioral, and physical therapy. (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 does not have to substantially limit other major life activities to be considered a substantially limiting impairment. (9)     The six-month “transitory” part of the “transitory and minor” exception to the “regarded as” disabled coverage does not apply to individuals who have actual disabilities or who have a record of actual disability.  The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting and therefore be considered a protected disability.   5.     What other factors should be considered to determine if a major life activity is substantially limiting?  The final regulations make several other important points about how to evaluate whether a major life activity is substantially limited.   Employers can consider the condition, manner, and duration of an individual’s impairment as compared to “most people in the general population.”  This analysis may include, among other things, consideration of the difficulty, effort, or time required to perform a major life activity; pain experience when performing a major life activity; the length of time a major life activity can be performed; and the way an impairment affects the operation of a major bodily function.        However, as noted in the rules of construction (see # 4, above), the determination of whether an impairment is substantially limited should not require extensive analysis.  As the revised Appendix to the final regulations state, the “primary purpose” of the ADAAA is “to make it easier for people with disabilities to obtain protection under the ADA.”  So, the EEOC’s focus will be on whether an individual with an impairment has been treated properly under the ADA, not on whether the person meets the legal criteria for being disabled. 6.     Are there any conditions that always will be considered disabilities?  Prior to the ADAAA, courts have been reluctant to say a particular disease is always a disability, or a “per se” disability, and instead evaluated the effect of the disease on the particular individual to determine whether he is disabled.   Now, however, although the final regulations still require an individualized assessment regarding whether a particular individual’s impairments are a disability, they also contain a nonexhaustive list of medical conditions that generally will meet the disability definition.  According to the regulations, “the individualized assessment of some types of impairments will, in virtually all cases, result in a determination” of an actual or regarded as disability, and “it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated.”      This list includes deafness that substantially limits hearing; blindness that substantially limits seeing; intellectual disability (the new term for mental retardation) that substantially limits brain function; partially or completely missing limbs or mobility impairments requiring the use of a wheelchair; autism that substantially limits brain function; cancer that substantially limits normal cell growth; cerebral palsy that substantially limits brain function; diabetes that substantially limits endocrine function; epilepsy that substantially limits neurological function; HIV that substantially limits immune function; multiple sclerosis that substantially limits neurological function; muscular dystrophy that substantially limits neurological function; and major depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia that substantially limit brain function.  7.     Are there any impairments that will not be considered disabilities? The proposed regulations had provided a relatively short list of impairments that generally would not be considered disabilities because they are temporary, nonchronic impairments of short duration with little or no residual effects.  This list included the common cold, seasonal or common influenza, appendicitis, seasonal allergies, a sprained joint, minor or nonchronic gastrointestinal disorders, and a broken bone that is expected to heal completely.   However, this list was eliminated from the final regulations.  The deletion does not necessarily indicate that any of these conditions would therefore be considered disabilities, but instead reflects the EEOC’s reluctance to declare any condition not to be a disability.  Officially, the EEOC indicated that the list created too much “confusion” among commenters who wanted clarification about whether the conditions could ever be considered disabilities.       Remember, too, even if an impairment is “transitory,” i.e., lasts less than six months, that fact alone does not mean it is not a disability.  The defense that an impairment is “transitory and minor” only applies when an employer is trying to argue that a person who it wrongly took action against because it “regarded” the person as having an impairment is not protected by the ADA because the actual or perceived impairment is both transitory and minor.  (See # 9, below.)  A short-term impairment still may be a disability if it substantially limits a major life activity (see # 4, above). 8.     Do the regulations change how you treat individuals who have a “record of” a disability?   The final regulations do not change the definition of “record of,” though they do provide new examples.  Under both the current and final regulations, an individual generally meets the “record of” definition when the person has a history of an impairment that substantially limited him in performing one of more major life activity.  Alternatively, if the person has been misclassified as having a substantially limiting impairment, that person is considered to have a “record of” a substantially limiting impairment.  In addition, the final regulations clarify that an individual with a record of a disability may be entitled to a reasonable accommodation if needed and related to the past disability.  As an example, the regulations indicate that an employee with a record of a disability may need leave or a schedule change to attend follow-up monitoring appointments with a health care provider as an accommodation. 9.     Are there changes to the “regarded as” disability definition? The interpretation for what is a “regarded as” disability has changed significantly.  Previously, an individual had to show that the employer believed the impairment (or perceived impairment) substantially limited a major life activity.  Under the final regulations, an employer regards an individual as disabled if it takes an adverse action (such as not hiring or terminating an individual) because an individual has an impairment or a perceived impairment.  Note, that the regulations indicate it does not matter whether the person’s impairment substantially limits a major life activity to meet the “regarded as” standard.   But, if the impairment is both “transitory,” defined as one with an actual or expected duration of six months or less, and “minor” then the individual is not protected as “regarded as” disabled.  (“Minor” is not defined by the regulations or commentary.)  Further, the final regulations also do not require employers to provide reasonable accommodation to a person who is only “regarded as” disabled.  Still, these changes make it much easier for an individual to charge that you improperly “regarded” him as disabled if he can show he had any sort of impairment or you thought he had any sort of impairment and took action as a result. 10.     Do the new definitions apply retroactively?   No.  But the expanded disability definition applies as of January 1, 2009, the effective date of the ADAAA.  So, although the final regulations do not take effect until May 24, 2011, the expanded disability definition took effect when the ADAAA did. Five Steps to Prevent ADA Litigation Buried in the introductory comments by the EEOC explaining the final regulations is an interesting section addressing the potential legal costs attributable to the ADAAA and the final regulations.  In its analysis, the EEOC acknowledges the difficulty in predicting new legal costs, but concedes that the expanded disability definition, particularly the “regarded as” disabled prong, will result in more EEOC charges and lawsuits.  More telling is the following commentary by the EEOC:  “Moreover, we anticipate that plaintiffs’ lawyers, who previously might not have filed an ADA lawsuit because they believed that an employee would not be covered under the Supreme Court’s cramped reading of the term “disability,” will now be more inclined to file lawsuits in cases where the lawyers believe that discrimination on the basis of disability – broadly defined – has occurred.  As a result, we believe that there may be additional legal fees and litigation costs associated with bringing and defending these claims, but we have no basis on which to estimate what these costs may be.”        The EEOC’s assessment is an understatement at best.  Most legal experts predict that the new ADAAA requirements coupled with these final regulations will result in greatly increased numbers of ADA claims filed since anyone with a medical impairment could be disabled, particularly under the “regarded as” prong.  In addition to individual complaints, you also can expect more class action complaints (which involve much bigger payouts for plaintiffs’ attorneys) targeting employer policies, such as those involving hiring procedures that only exclude anyone with an impairment, post-offer and employee medical examinations, and automatic terminations after a certain period of medical leave.       So, if you had any doubts that these new regulations were going to affect your bottom line, the EEOC’s comments and expert predictions support the fact that you need to be prepared for the potential of increased ADA complaints and even full-blown litigation.  Here are five steps you should take now to help protect your organization:   1.     Assume that most individuals with a medical impairment may be protected by the ADA and treat them as such.  This approach is a drastic change from how most employers used to deal with potential disability issues.  In the past, employers successfully challenged whether individuals actually met the disability definition, and often won in court.  In these situations, they did not even get to the question of whether the person was entitled to an accommodation.       Now, though, instead of challenging whether a person has a covered disability, your resources will be best spent first focusing on whether the person with an impairment is “qualified” and has the requisite skills and knowledge to perform the job, with or without an accommodation.  And, second, if the person is qualified, you should engage in the interactive process to determine what, if any, accommodation is required (i.e., reasonable) to allow the person to perform the essential functions of the job in question.  2.     Review your policies and procedures to make sure you have incorporated changes by the ADAAA and final regulations.  Most employers have had policies addressing ADA issues for years and may have “tweaked” them to reflect the ADAAA’s new definitions.  So, as a practical matter, your policies may not change as much as how you implement them does to cover more individuals with impairments (see # 1, above).  In addition, you should ensure your policies do not screen out individuals with medical impairments.  Page 8 includes a list of policies that should include ADA references. 3.     Train supervisors, managers, and HR staff about the new ADA definitions.  Focus attention particularly on what major life activities are covered, how to use the nine “rules of construction” to determine who is “substantially limited’ in these activities, and what impairments likely are considered protected disabilities.  In addition, make sure that your staff is careful withn dealing with any indivudual who has a medical impairment.  Even if the impairment is not substantially limiting, the individual may be protected under the “regarded as” prong. 4.     Make sure you understand the ADA interactive accommodation process.  The final regulations do not make changes to the accommodation process, but clearly their expansion of the disability definition reinforces that your time is best spent on evaluating accommodation requests.  In addition, you should document your accommodation efforts to show your good faith efforts to comply with the ADA’s requirements and to support any negative decisions.  However, you do not have to accommodate individuals who are “regarded as” disabled.  5.     When in doubt, seek legal counsel.  Most HR and legal experts agree that the ADAAA expansion of the disability definition will result in many more ADA claims and decidedly fewer positive decisions for employers.  So, if you want    to reject an applicant with a medical impairment, deny an accommodation request, or are unsure whether an impairment substantially limits a major life activity, then you should review your decision with your attorney to ensure it can withstand a challenge.  Here is a list of policies that are affected by the ADA and that should include disability references: 1.     Serious Diseases policy.  This policy is a necessity.  The model policy we provide in Serious Diseases, Chapter 203A, is really an ADA policy as it applies to dealing with employees who have medical impairments that may limit their ability to work.  It addresses such topics as how your organization will treat employees with serious illnesses, impairments, and injuries, how to request an accommodation, and confidentiality of medical information. 2.     Medical Procedures policy.  If you have a Medical Procedures policy that explains when an employee or job applicant may be required to have a medical examination, that policy should reference the ADA’s requirements, such as medical tests for current employees when they are job-related and consistent with business necessity.  (See the model policy in Medical Procedures, Chapter 203.) 3.     EEO policy.  Your Equal Employment Opportunity policy should include disability in the list of EEO protections.  For example, the model policy in the Personnel Policy Manual System, Equal Employment Opportunity, Chapter 201, states that the Company will not discriminate based on several categories, including disability.   4.     Harassment policy.  Your harassment policy should include a reference to prohibiting harassment based on all of the EEO classifications, including harassment based on disability.  (For a model policy, see Productive Work Environment, Chapter 201A, Comment (1).) 5.     Hiring policy.  Your hiring policy should indicate that you will consider requests for accommodations for disabilities, as required by the ADA.  (The model policy in Hiring, Chapter 202, Comment (6)(b) covers accommodation requests.) 6.     Leaves of Absence policy.  Even if you are covered by the Family and Medical Leave Act and provide leaves for serious health conditions, you also should make sure that your leave policy refers to providing leaves for disabilities.  A leave of absence can be an accommodation for an employee with an actual disability or who has a record of a disability.  (For sample language, see the model policy in Leaves of Absence, Chapter 703, Comment (2)(a).)  7.     Breaks policy.  You may want to indicate in your meal and/or rest break policies that break times may be changed.  This language shows that you may change break times as an accommodation under the ADA.  (For sample language, see the model policies in Rest Breaks, Chapter 704, Comment (2), and Meal Breaks, Chapter 705, Comment (3).)      In addition, you should be aware that while you may not have to address the ADA in every policy, when you are implementing your policies, you need to ensure that you are considering the possible impact of the ADA when dealing with an applicant or employee with an impairment.  Most of the model policies in the Personnel Policy Manual System have management and legal notes that address the potential ADA issues.  For example, if you are enforcing an attendance and punctuality policy, you may need to provide additional excused absences to a disabled employee covered by the ADA as an accommodation.  (For a discussion regarding the ADA and attendance issues, please see Attendance and Punctuality, Chapter 701, note 13.)  Other policies that may implicate the ADA include Transfer, Chapter 205; Promotion, Chapter 206; Hours of Work, Chapter 207; Job Evaluation, Chapter 304; Automobile Usage, Chapter 402; Disclosure of Benefits, Chapter 501; Parking, Chapter 605; Smoking, Chapter 607; Short-Term Absences, Chapter 702; Behavior of Employees, Chapter 801; Drugs, Narcotics, and Alcohol, Chapter 809; and Personnel Records, Chapter 901.