ADA Changes - What Employers Need to Know

On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. The ADAAA is intended to redress the broad array of federal court cases that, in the words of the act, have "created an inappropriately high level of limitation necessary to obtain coverage under the ADA," resulting in decisions holding that "people with a range of substantially limiting impairments are not people with disabilities."

Thus, the ADAAA explicitly rejects the strict standard created by the Supreme Court in Williams that to be substantially limited in a major life activity, an "individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives."

1. Mitigating measures: The ADAAA clearly states that a determination of whether an individual is substantially limited in a major life activity shall be made without regard to mitigating measures (e.g., medication, medical supplies, equipment, and other auxiliary aids or services). Thus, the new law rejects the Supreme Court's Sutton decision that allowed consideration of mitigating measures in determining if someone was disabled. So, for example, a diabetic who uses insulin may nevertheless be deemed disabled even if the insulin controls the sugar imbalance. (Prescription eyeglasses and contact lenses, however, may still be considered in assessing whether an individual is "substantially limited."

2. Major life activities: The ADAAA now includes a nonexclusive list of major life activities, including sleeping, learning, concentrating, thinking, and communicating. A significant addition now lists the operation of "major bodily functions," including functions of the "immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." These changes will help eliminate the confusion about what conditions may fall under the ADA and direct attention to the underlying medical condition.

3. "Regarded as" analysis: The ADAAA expands "regarded as" protections by prohibiting discrimination based on the employer's perception of a mental or physical impairment, whether or not the individual can establish that the impairment actually limits, or is perceived to substantially limit, a major life activity.

In one piece of good news for employers: employees cannot establish that they have been regarded as disabled if their impairment is transitory and minor, meaning its duration or expected duration is six months or less. So an employee who breaks her wrist and wears a cast for six weeks cannot claim she has been regarded as disabled.

Some employers may not see much change. In states such as California, New Jersey and New York, state or local laws are even more expansive than the amended ADA, and employers in these states may already be used to the broader disability coverages under state and local laws. Nationwide, however, the expanded definition of "disability" under the act will increase the number of individuals protected by federal law.

For example, the ADAAA makes clear that impairments that are episodic or in remission can still be considered a "disability" if they would substantially limit a major life activity when active. Accordingly, in deciding if a reasonable accommodation is owed to an employee, you will need to consider not only the current effects of an impairment, but also what the effects would be if the impairment were in an active state.

But the ADAAA removes the focus from a "disability" inquiry, and places the focus squarely on the individualized interactive process. Thus, employers must be prepared to engage applicants and employees in a reasonable accommodations conversation and, as appropriate, provide qualified individuals with accommodations to perform their essential job duties. One question may be” Can you perform the essential duties and responsibilities of the job with or without accommodation?” From the answer you can decide how to handle the situation If employees or applicants claim a disability and you request substantiation, some documentary evidence from a healthcare practitioner supporting the disability claim and reflecting the limitation(s) will still be needed to assess if a covered disability exists.

Remember that if the disability is obvious, a duty to accommodate might exist even if the employee has not asked for an accommodation. In one recent case, Brady v. Wal-Mart Stores Inc. (2008), the 2nd U.S. Circuit Court of Appeals affirmed an award of $900,000 to a former pharmacy assistant with cerebral palsy, but who never requested an accommodation.

Of course, identifying and offering reasonable accommodations does not mean that any individual is entitled to a job. The ADAAA makes it clear that the individual must be qualified. Reasonable accommodations are designed to put the applicant or employee on an equal footing with other qualified individuals.

What Should You Do As An Employer?

If you have 15 or more employees or your State has a more stringent law:

1. Employers should review their policies and practices governing the ADA's interactive process and revisit the essential functions of the jobs to ascertain what functions are the core responsibilities that may require accommodations.

2. In light of the new focus on reasonable accommodations, employers should remember that the ADA itself provides a nonexhaustive list of accommodations, including, for example, acquiring certain equipment; adjusting exams, training materials, or policies; providing qualified interpreters; reallocating nonessential job functions; permitting part-time or modified work schedules; and reassigning employees to vacant, equivalent positions. In addition, the EEOC and a host of court decisions make clear that unpaid leaves must also be considered.

3. In the new world of the ADAAA, employers should keep records of accommodations requests made and accommodations denied or provided, along with some evidentiary back-up for the decisions made. Further, consider refresher training of human resources professionals and line managers about the ADA's requirements about the interactive process and reasonable accommodations.

4. Make sure that in the Interview Process that, proper interviewing techniques are used. No questions about disability should be asked you can be establishing a situation of “Regarded As”.

5. Employers should be extremely cautious about taking any employment action based on an individual’s actual or perceived physical or mental impairment. Employees will most likely have greater success establishing that they have been discriminated against because of a perceived disability.

Effective Date:

The ADA Amendments Act is effective as of January 1, 2009.

This material is provided as general knowledge. It is not to be construed as legal advice. Be sure to get expert assistance before implementing any policy, procedure or taking any type of action that affects the employment arrangement. There may be additional requirements that your company must satisfy in relation to Federal, State, County or City laws and regulations.

Michael A. Holzschu is the managing principal in the firm of Holzschu, Jordan Schiff & Associates specializing in Human Resource Systems, with a special focus on employee handbooks, job descriptions, performance appraisal systems, harassment training, safety and quality issues. He can be contacted at (248) 476-6907 or by email at mholzschu@hjsa.com or mholzschu@businessknowhow.com. The company’s client base is primarily small to medium employers from all types of industries located throughout the United States. Company website: www.hjsa.com.