Recognizing disabilities and providing reasonable accommodations as required by federal law are topics that are often overlooked or misunderstood by employers and can be perplexing for even the most experienced union representatives (and attorneys). Because the law has changed and because disability-related matters arise from time to time, the following provides a brief summary and some issues to be aware of in the orchestra workplace. We welcome your questions and comments.
The Americans with Disabilities Act (ADA) was enacted in 1990 to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” The ADA applies to employers who employ 15 or more employees. Unfortunately, for over two decades after the law’s enactment, the question of who qualified as disabled under the ADA was, in general, narrowly construed by the courts, including the Supreme Court, in ways that made it extremely difficult to come within the scope of the statute or to prove disability discrimination. The ADA Amendments Act (ADAAA) was enacted in 2008 in response to some of these Supreme Court decisions and became effective on January 1, 2009. The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcement, finalized regulations under the new law in May of 2011.
What Is a Disability? Under the ADAAA, the definition of disability is to be given an expansive interpretation, in favor of broad coverage and “should not demand extensive analysis.” As under the original statute, a person has a disability if he or she meets one of three criteria and is able to do his or her job with or without reasonable accommodation. Employees are disabled under the law if they:
- have a physical or mental impairment that substantially limits one or more major life activities; or
- have a record of a physical or mental impairment that substantially limited a major life activity; or
- are perceived as having an impairment.
While the basic definition of disability did not change, the ADAAA makes it much easier to meet the definition of disability by changing the way the law is to be interpreted; making clear that the law is to be construed in favor of “broad coverage” and that the question of whether someone is disabled should not require “extensive analysis.” Among other changes, the ADAAA broadened the concepts of “substantially limits” and “major life activities,” making it much easier to prove the existence of an “impairment.” An impairment is a physical or mental disorder, illness, or condition. These can include physiological disorders or conditions, cosmetic disfigurement, anatomical loss affecting one or more body systems or any mental or psychological disorder, including emotional or mental illnesses.
How Substantial Is Substantial? The ADAAA, as implemented by the EEOC, makes clear that an impairment that “substantially limits” (a major life activity) need not prevent or severely or significantly restrict that activity. An impairment can be substantially limiting even if the condition is episodic or in remission (like asthma, diabetes or various mental illnesses). The test is whether the condition would substantially limit a major life activity when the condition is in the active phase. In addition, the determination of whether a condition “substantially limits” “a major life activity” must be determined without taking into account mitigating measures such as medications, and other medical devices or equipment, (with the exception of regular eyeglasses and contact lenses).
What’s a Major Life Activity? The ADAAA also expanded the scope of what constitutes a “major life activity” (that must be “substantially limited” to constitute an impairment covered by the ADA). Major life activities include activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. In addition, the amended law now recognizes the operation of major bodily functions, as major life activities. These include, for example, functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. (So yes, sex can be included.) The EEOC has stated that the list of major life activities is not exhaustive and includes the basic activities that most people in the general population can perform with little or no difficulty.
Who’s Disabled? The EEOC has stressed that “it should easily be concluded” that there are some impairments that will virtually always meet the definition of disability whereas others may or may not constitute disabilities based on an individualized assessment. But even where the determination is not a foregone conclusion, the analysis should not be extensive. By way of illustration, conditions that will always limit a major life activity include cancer (limits cell growth), major depressive disorder (limits brain function), diabetes (limits endocrine function), etc. In considering whether there is a substantial limitation, the focus is on what major life activities are substantially limited, not on what a specific individual can achieve. One additional point—in order to be protected, the impairment must not be transitory or minor. But the EEOC has refused to specify a required duration. It has stated that temporary, non-chronic impairments of short duration with little or no residual effects, such as a common cold, a sprained joint or broken bone that is expected to heal completely, are usually not disabilities.
The amended law also makes significant improvements in the protections afforded to persons “regarded as” having a disability and who are discriminated against as a result. If an employer believes an employee has a covered “impairment” regardless of whether the employee actually does, the employee is now protected by the law.
So Why Should We Care? The recent changes to the law mean that many more people qualify for the ADAAA’s protections. Workplace policies and interactions with musicians by management should be evaluated with sensitivity to the fact that a given musician may be protected under the Act. In reviewing and policing contracts, musician representatives should try to be aware of whether problems a musician may be having on the job are related to the existence of a disability. If so, the law requires the employer to make reasonable accommodations upon the request of a disabled employee. Disabled musicians who are not being accommodated by management may be able to file charges with the Equal Employment Opportunity Commission (“EEOC”). It is also possible that discrimination on account of disability can be addressed through the grievance process.
What follows are some of the issues we have seen in the everyday orchestra world.
Reasonable Accommodations. If requested by the employee, the law requires employers to provide reasonable accommodations to disabled employees to enable them to perform their jobs. An employer must provide an accommodation unless it is an “undue burden.” An undue burden is one that results in significant difficulty or expense based on the resources and operations of the business. Employers must engage in an interactive process with disabled employees to help find an accommodation that is reasonable. This means the employers should meet with the employees to discuss their needs, an area where representatives can be really helpful. If more than one reasonable accommodation is available, the employer can choose the one that is least costly. Union representatives can work with employers and the disabled musician to help identify a reasonable accommodation because sometimes the accommodation may not be obvious. As union representatives, you can also discuss with fellow icsom members what other orchestras have done to accommodate musicians. Types of accommodations that have been provided in orchestras include such things as work schedule flexibility, accommodations related to placement of and types of seating, assistive device considerations, parking considerations and travel flexibility. Some employees may be fearful of disclosing a disability to the employer. The law protects against retaliation. Musician representatives can be especially helpful in assuring employees that they will be there to protect them.
Leave Policies. Some collective bargaining agreements have provisions that require that musicians on disability leave be replaced or terminated after a certain period of time. Depending on the circumstances, additional leave may be a reasonable accommodation for certain disabled employees. The EEOC has indicated that it expects employers to engage in the interactive process and that blanket leave policies may be subject to challenge. The key under the ADAAA is whether an accommodation constitutes an undue burden. Clearly, a disability leave of absence that forever precludes replacement through an audition may at some point in time be unduly burdensome. But the employer may still be required to engage in the interactive process before permanently replacing a disabled employee and the union has a right to be involved. Sometimes the interactive process is built into and described in the collective bargaining agreement, such as in provisions for communicating with employees about their likely expected return to work and for obtaining medical information. You might want to revisit this issue during the next round of negotiations and put in provisions for accommodation of disabled employees in your orchestra’s leave policies.
Medical Information That Can Be Requested. When faced with a request for an accommodation, an employer may ask for documentation from an employee’s doctor about the individual and why the requested accommodation is necessary only if the disability or the need for an accommodation is not obvious. For example, the employer could not ask a blind musician’s doctor to provide proof of disability, but the employer could ask an employee with a heart condition or a mental illness for documentation and why the requested accommodation is needed. The employer can ask things like how an impairment limits a major life activity, the general type of impairment, and how the requested accommodation would enable the employee’s job to be performed. An employer may also require a medical examination and can make disability related inquiries, but only if the employer has a reasonable belief that an employee’s present ability to perform his essential job functions is impaired by a medical condition or if the employer has a reasonable belief that the employee’s condition will pose a direct threat. For example, an employee with a psychiatric illness who threatened co-workers and then sought treatment may be asked by the employer for additional information concerning his medication or treatment, or the employer may request that the employee submit to a medical examination. During a disability leave, the employer may require an employee to provide periodic updates on his or her condition and possible date of return. However, if the employer has granted a fixed period of extended leave and the employee has not requested additional leave, the employer may not ask for such information.
A Note about the Tax Consequences of Paying for Disability Insurance Coverage. Some musicians have inquired about whether disability insurance benefits are taxable. The answer (not surprisingly) is, it depends. The tax code looks to the source of funding. If the entire premium for the disability insurance coverage is provided by the employer and not included in gross income, or if the musician pays for the benefit on a pre-tax basis such that the cost of the premiums are not includible in gross income, the benefit is taxable (includible in gross income) when received. If, on the other hand, the musician pays for the disability insurance premiums with after-tax dollars, the benefits are not taxable. In cases where a musician is offered a “buy up” (such as where the employer pays for a policy covering the first two years of a disability and the employee buys up to have insurance covering a longer period of time), the portion of the benefit attributable to the buy up would not be taxable so long as it is established that the benefit was in no part financed by the employer and that the premiums for the benefit are paid with after tax dollars. If an orchestra decides to move from an employer financed plan to a plan paid for by the musicians through payroll deductions (that are included in gross income) and the plan is an insured group plan, (as most orchestra plans are), the IRS will employ a three-policy-year “look back” to determine the taxable portion of the benefit.
The formula provides that the taxable portion is the total amount of the benefits received multiplied by a fraction, the numerator of which is the total amount of the contributions paid by the employer over the prior three years and the denominator of which is the total of all premiums contributed during those three years by both the employer and the employees. In other words, in a situation where the employees change disability insurance financing and begin to pay the full cost of the premiums, the non-taxable portion of any benefit received during the first three years is phased in.
It is possible this article may generate as many questions as it answers. But, as always, one of the keys to good representation is the ability to identify the issues and ask the right questions. Hope this brief summary of the law is helpful.