Constangy s Field Guide to the Americans with Disabilities Act

  • ID: 3511112
  • Book
  • Region: United States
  • 250 Pages
  • ALM Media, LLC
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Daily Business Review Books is releasing their annual:  Labor and Employment book: Constangy’s Field Guide to the Americans with Disabilities Act, authored by the law firm of Constangy Brooks & Smith, LLP. This book will provide the employment law practitioner with clarity to the most recent developments for the ADA Amendments Act and facilitate a better understanding of:
- How the new EEOC regulations to the ADAAA greatly expand the number of disabled employees
- How to prosecute and defend cases in a post-ADAAA environment
- Why a "regarded as" claim is now the most dangerous claim
- How to attack and defend "essential functions"
- What "association" claims are and who can make them
- Reasonable accommodation claims
- and much more
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Chapter 1 Purpose and Applicability
 
1-1       29 C.F.R. § 1630.1 -- PURPOSE, APPLICABILITY, AND CONSTRUCTION.
1-1:1    Retroactivity and Authority
1-1:2    Amendments Expanded Coverage and Refocused Analysis
1-1:2.1 Expanded Coverage
1-1:2.2 Focus on Discrimination Rather Than Disability
1-1:2.3 U.S. Supreme Court ADA Decisions Limiting Coverage Overruled
1-1:3    Preemption
1-1:4    Impact of Application for State or Federal Benefits on ADA Claims
1-1:5    Florida Human Rights Act in Conformity with ADA
Chapter 2 Definitions
2-1       29 C.F.R. § 1630.2 -- DEFINITIONS.
2-1:1 Who Can Be Sued?
2-1:1.1 Employers
2-1:1.2 Supervisors
2-1:1.3 Other Potential Defendants
2-1:1.4 Ministerial Exception for Religious Organization Employers
2-1:2    Who Can Sue?
2-1:2.1 Only Employees Entitled to Sue
2-1:2.2 Distinguishing Employees and
2-1:3    ADAAA's Expanded Definition of Disability
2-1:4    Three Types of Disabilities
2-1:4.1 Actual Disability
2-1:4.2 Record of Such Impairment
2-1:4.3 "Regarded as" Having Such an Impairment
2-1:4.3a           Scope of "Regarded as" Protection
2-1:4.3b          Application of "Regarded as" Prong
2-1:4.3c           Assert "Regarded as" Prong if No Reasonable Accommodation Sought
2-1:4.3d          Defense to "Regarded as" Claim
2-1:5    Elements of Disability Definition
2-1:5.1 Physical or Mental Impairment
2-1:5.2 No Per Se Disabilities
2-1:5.3 Major Life Activity
2-1:5.4 Substantial Limitation
2-1:5.5             Mitigating Measures
2-1:5.5a           Old Rule: Mitigating Measures Negate Coverage
2-1:5.5b          Amended Rule: Mitigating Measures Do Not Affect Coverage
2-1:5.5c           Regulations' List of Mitigating Measures Not Exhaustive
2-1:5.5d          Episodic Impairment or Impairment in Remission
2-1:5.5e           Negative Effects of Mitigating Measures Considered
2-1:6    Perfecting an ADAAA Claim
2-1:6.1 Exhaust Administrative Remedies With EEOC Charge
2-1:6.2 Timing Required for Filing EEOC Charge
2-1:6.3 Alleging Failure to Reasonably Accommodate
2-1:6.4 Alleging "Regarded as" Claims
2-1:6.5 Alleging Hostile Environment
2-1:6.6 Alleging Retaliation
2-1:6.7 Avoiding Dismissal for Failure to State a Claim
2-1:7    Definition of Qualified Individual
2-1:7.1 Defense That Plaintiff is Not Qualified Individual
2-1:7.2 Timing for Determining if Employee Is Qualified
2-1:7.3 Questions to Ask to Determine if Employee Is Qualified
2-1:8    Definition of Essential Functions
2-1:8.1 Attendance at Work as Essential Function
2-1:8.1a           Asserting Attendance at Work as Essential Job Function/Defense to ADA Claim
2-1:8.1b          Employer's Inconsistent Actions Weakens Essential Function Defense
2-1:8.1c           Effect of Leave/Accommodation on Essential Function Defense
2-1:8.1d          Avoiding Estoppel on Attendance Issue
2-1:8.2 Other Essential Functions
2-1:8.3 Defining Essential Functions by Conduct or Job Description
2-2       § 1630.3 -- EXCEPTIONS TO THE DEFINITIONS OF "DISABILITY" AND "QUALIFIED INDIVIDUAL WITH A DISABILITY."
2-2:1    Exceptions to Definitions of Disability and Qualified Individual: Alcohol and Illegal Drug Use
2-2:1.1 ADA Protection for Rehabilitated User
2-2:1.2 Defining Current Use
2-2:1.3 Second or Last Chance Agreements
2-2:1.4 Distinguishing Disability from Conduct Flowing From Disability
Chapter 3 Prohibited Conduct
3-1       29 C.F.R. § 1630.4 -- DISCRIMINATION PROHIBITED.
3-1:1    Adverse Employment Action
3-1:2    Defense
3-2       29 C.F.R. § 1630.5 -- LIMITING, SEGREGATING, AND CLASSIFYING.
3-2:1    Activity Violating Prohibition
3-2:2    Uniformly Applied Policy Changes Permitted
3-2:3    Judicial Interpretation of Segregation/Classification Prohibition
3-3       29 C.F.R. § 1630.6 -- CONTRACTUAL OR OTHER ARRANGEMENTS.
3-3:1    Reliance on Medical Advice No Defense
3-3:2    Protecting Employees From Discrimination at Other Locations
3-4       29 C.F.R. § 1630.7 -- STANDARDS, CRITERIA, OR METHODS OF ADMINISTRATION.
3-4:1    Standards Must Be Job-Related and Consistent with Business Necessity
3-5       29 C.F.R. § 1630.8 -- RELATIONSHIP OR ASSOCIATION WITH AN INDIVIDUAL WITH A DISABILITY.
3-5:1    Association Discrimination
3-5:1.1 Three Association Discrimination Theories
3-5:1.2 Scope of Association Protection
3-5:1.3 Causation
3-5:1.4 Potential Association Claims
Chapter 4 Reasonable Accommodations
4-1       29 C.F.R. § 1630.9 -- NOT MAKING REASONABLE ACCOMMODATION.
4-1:1    Introduction
4-1:2    Reasonable Accommodation Must Provide Equal Benefits and Privileges of Employment
4-1:3    Scope and Conditions of Duty to Provide Reasonable Accommodation
4-1:3.1 Reasonableness of Accommodation Can Change
4-1:3.2 No Duty to Accommodate if No Disability
4-1:3.3 Employee Not Entitled to Accommodation of Choice
4-1:3.4 Employer Must Know of Disability
4-1:4    ADAAA's Impact on Reasonable Accommodation
4-1:4.1 No Duty to Accommodate Employee "Regarded As" Disabled
4-1:4.2 No Reverse Discrimination Claims Permitted
4-1:5    What Constitutes Request for Reasonable Accommodation
4-1:5.1 Employee Must Expressly Request Accommodation
4-1:5.2 Employer's Mere Knowledge of Disability Does Not Trigger Duty to Accommodate
4-1:5.3 Employee Must Specify Limitations of Disability
4-1:6    Interactive Process for Achieving Reasonable Accommodation
4-1:6.1 Employee Cannot Subjectively Conclude Employer Not Participating in Accommodation Process
4-1:6.2 Employee Not Obligated to Engage in Futile Interactive Process
4-1:6.3 Failure to Engage in Interactive Process Not Automatic Violation
4-1:7 Basic Principles of Law Concerning Employee Influence/Input on Accommodation Selection
4-1:7.1 Accommodation Need Not be Employee's Preferred Accommodation But Must Be Effective
4-1:7.2 Employer Must Consider Employee Suggestions for Accommodation
4-1:8    Key Litigation Issues Relating to Reasonable Accommodation and Essential Functions of a Position
4-1:8.1 Employer Sets Essential Functions
4-1:8.2 Job Description Should be Detailed
4-1:8.3 Employer Need Not Reassign or Eliminate Job Functions to Accommodate
4-1:8.4 Creating Light Duty Position Does Not Estop Claim That Task is Essential
4-1:8.5 Extended Leave Not Required and Must Assist Employee in Performing Essential Functions
4-1:9    Relevance of Leave and Attendance Policies
4-1:9.1 Inflexible Leave Policies Could Violate Obligation to Consider Leave as Accommodation
4-1:9.2 No-Fault Attendance Policies Violate ADA
4-1:10  Change of Supervisor Not Required
4-1:11  Effect of Accommodation on Other Employees Can Affect Reasonableness
4-1:12  Challenges to Determining Reasonable Accommodation
4-1:13  Plaintiff Bears Burden of Demonstrating Reasonable Accommodation Exists
4-1:14  Common Employer Mistakes or Failures in Accommodation Process
4-1:14.1           Rushing the Interactive Process
4-1:14.2           Relying on Employee to Propose or Accomplish Accommodation
4-1:14.3           Undue Delay in Accommodation
4-1:14.4           Suggested Practices
4-1:15  Accommodation Not Required Outside Workplace
4-1:16 Undue Hardship and Miscellaneous Issues
4-2       Request for Accommodation Form
 
Chapter 5       Standards and Tests
5-1       29 C.F.R. § 1630.10 -- QUALIFICATION STANDARDS, TESTS, AND OTHER SELECTION CRITERIA.
5-1:1    Employers Cannot Screen Out Employment Applicants with Disabilities
5-1:2    Selection Criteria Must be Linked to Essential Function
 
5-2       29 C.F.R. § 1630.11 -- ADMINISTRATION OF TESTS.
5-2:1    Must Provide Reasonable Accommodation in Rendering Test
5-2:2    Only Disabled Employees Have Standing to Challenge Testing
Chapter 6 Retaliation
6-1       29 C.F.R. § 1630.12 -- RETALIATION AND COERCION.
6-1:1    Plaintiff Must Have Engaged in Protected Activity
6-1:2    Employee Needs Only Good Faith Belief in Disability
6-1:3    Third-Party Retaliation Claims Permissible
6-1:4    Manufactured Retaliation Claim
6-1:5    Damages and Jury Trials
6-1:6    Protection for Employees Protesting on Behalf of Co-Worker
Chapter 7 Medical Examinations and Inquiries
7-1       29 C.F.R. § 1630.13 -- PROHIBITED MEDICAL EXAMINATIONS AND INQUIRIES.
7-1:1    Medical Examination Distinguished From Personality Test
7-1:2    Medical Examination Permissible if Job-Related and Consistent with Business Necessity
7-2       29 C.F.R. § 1630.14 -- MEDICAL EXAMINATIONS AND INQUIRIES SPECIFICALLY PERMITTED.
7-2:1    Medical Examination Permissible if Linked to Skill Needed to Perform Job
7-2:2    Factual Basis Needed for Examination of Employee
7-2:3    Balancing Employment Need and Risk of Revealing Disability
7-2:4    Scope of Examination Limited
Chapter 8       Defenses
8-1       § 1630.15 -- DEFENSES.
8-1:1    Direct Threat to Others Defense
8-1:1.1 Plaintiff Bears Burden to Prove No Direct Threat
8-1:1.2 Individualized Assessment Required
8-1:1.3 Per Se Direct Threats
8-1:1.4 Direct Threat is Not "Otherwise Qualified" Individual with Disability
8-1:1.5 Employment Decisions Based on Direct Threat Must Be Based on Consequences of Condition, Not Condition
8-1:1.6 Universal Restrictions for Safety-Sensitive Positions Permissible
8-1:2    Defense of Disparate Impact Claim
8-1:3    Burden of Proof
8-1:4    Undue Hardship Defense
8-1:4.1 Requirements of Undue Hardship Defense
8-1:4.2 Establishing Undue Hardship Defense
8-1:4.3 EEOC Evaluation of Undue Hardship Claims
8-2       29 C.F.R. § 1630.16 -- SPECIFIC ACTIVITIES PERMITTED.
8-2:1    Ministerial Exception
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  • Michael D. Malfitano
Mike Malfitano is a senior Florida labor attorney who assists employers in problem prevention and legal analysis of complex employment issues. He has represented employers in cases involving every aspect of the employment relationship. He also represents employers in collective bargaining, arbitration, and union avoidance. He counsels employers with respect to Title VII, ADA and FMLA compliance, Wage Hour compliance, employee benefits issues, affirmative action, and in structuring payroll and compensation programs.  Mike is a Managing Partner in Constangy, Brooks & Smith, LLP, a national labor and employment law firm, and is the Office Head of its Tampa Office.  He received his B.S. from the School of Industrial and Labor Relations at Cornell University, and his law degree from Boston College Law School.  Mike is a frequent lecturer at seminars for both employers and for other lawyers, and he has authored a number of labor law articles and a chapter of a book published by The Florida Bar on Labor Arbitration.  He is actively involved in community affairs, and is a member of the Board of Trustees of the Drug Abuse Comprehensive Coordinating Office (DACCO), and The University of Tampa Board of Fellows.  He is listed in The Best Lawyers in America (Woodward/White, Inc.) and Florida Super Lawyers.  He is recognized by Chambers USA as possessing valuable experience in the area and to be "very responsive and very good value."
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