Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

The United States Supreme Court recently refused to hear the case of Kellogg v. Energy Safety Services, Inc. which dealt with the question of whether driving is a major life activity under the ADA.  Kellogg worked as a safety technician for Energy Safety Services, and was required to drive a company vehicle to numerous work sites.  Kellogg  was diagnosed with epilepsy, and although she was cleared to continue working, her doctor prohibited her from driving.  Her employer advised her in writing that she worked in a "safety-sensitive" position, and she could not return to work without a full release from her doctor.  Kellogg sued under the ADA, and the jury found in her favor, awarding nearly $150,000 in compensatory damages and back pay.  On appeal, the 10th Circuit reversed the trial court, finding that driving is not a major life activity under the ADA.  The Supreme Court denied certiorari on Energy Safety Services application.  The following circuits have held that driving is not a major life activity under the ADA:  2nd, 3rd, 4th, 7th, 10th and 11th.  The 11th Circuit covers Alabama. 

Practice Pointer.  Although all these cases were decided under the old ADA, it must be noted that driving was not listed as a major life activity in the EEOC regulations under the old ADA, and it is not listed in the revised list of major activities under the ADA Amendments Act of 2008.  I anticipate as new cases wind their way through the courts under the ADA Amendments Act of 2008, this issue will continue to be addressed. 

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The Seattle Business Journal recently reported that in a survey of companies in the United States and Great Britain, corporate counsel expected the number of lawsuits filed against their companies  to increase in 2009.  Fulbright and Jaworski's 5th annual Litigation Trends Survey shows that 34% of companies are anticipating increased litigation in 2009, as opposed to 22% who predicted increased litigation for 2008.  The report goes on to state that in-house counsel reported increases in wage and hour litigation and privacy claims. 

As we rapidly approach 2009,  the Americans With Disabilities Amendment Act of 2008, with an effective date of January 1, 2009, and the new FMLA Regulations, with an effective date of January 16, 2009, will, in my judgment, lead to an increase in litigation in these areas.  Now is the time for employers to educate their HR professionals, managers and supervisory staff so they can effectively deal with these changes.

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President Bush recently signed the Americans with Disabilities Amendment Act of 2008 (ADAAA), which will become effective on January 1, 2009. The ADAAA will have a major impact on new cases filed after this date. Congress's intent in passing the ADAAA is to increase the coverage to additional employees. I anticipate that the ADAAA will result in a spike in new lawsuits being filed.

Some of the major changes of the ADAAA are:

1.   Pending cases.   Cases pending as of December 31, 2008 will be covered under the existing ADA and various court decisions.

2.  Supreme Court Decisions.  The Supreme Court's narrow interpretation of "disability" has been rejected by Congress, with the ADAAA stating that "substantially limits" shall be interpreted consistent with the findings and purposes of the ADA.

3. Mitigating Measures.  The ADAAA, with the exception of "ordinary eyeglasses or contact lenses" specifically sets forth that the effects of mitigating measures should not be considered in determining whether or not an individual has an impairment that substantially limits major life activity.

4. Substantially Limits. Congress specifically rejected the Supreme Court's narrow definition of "substantially limits" in Toyota Motor Mfg. Kentucky, Inc. v. Williams and instructs the courts to interpret "substantially limits" consistently with the findings and purposes of the ADA.

5. Major Life Activity.  The ADAAA sets forth a non-exhaustive list of major life activities including but not limited to "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." The ADAAA also sets forth as a major life activity, major bodily functions, including but not limited to "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."

6. New Regulations.  The ADAAA grants the EEOC, the Attorney General and Secretary of Transportation the authority to issue regulations interpreting the definition of disability under the ADA.

Practice Pointers

1. Now is the time to educate yourself, your HR Department and your supervisory employees as to the impact of the ADAAA.

2. Review and amend as necessary the job descriptions and essential functions of the jobs at your place of business.

3. For any employee who has requested an accommodation under the ADA, whether it was granted or not, reengage in the interactive process in light of the ADAAA, to ensure that those who are entitled to a reasonable accommodation receive it.

4. Consult with your employment attorney concerning how the ADAAA will impact your company.

Of course, I am available to help you should the need arise. I was invited to participate at a seminar for Sterling Education Service that took place on November 19, 2008 in Birmingham. My presentation addressed the ADAAA.  To view my written handout, click here:  ADAAA Handout

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