On September 25, 2008, President Bush signed Public Law 110-325, the Americans with Disabilities Amendments Act (ADAAA), specifically intended to broaden coverage of individuals who qualify as disabled under the ADA. For employers, this will mean that more employees will be entitled to engage in the accommodation process and that qualified employees will receive accommodation. Highlights of the ADAAA include the following:
|What Will Change||What Does the ADAAA Does||What Does This Mean for Employers|
|The definition of disability (“an impairment that substantially limits a major life activity”) remains, but will be broadly interpreted||Amends findings and purpose of the original ADA to insure “appropriately broad coverage” to the maximum extent permitted by the ADA. Lowers the bar for employees to qualify for ADA protection.Directs the EEOC to revise regulations to broaden the definition of “substantially limits.”||An employee’s impairment no longer has to “significantly” or “severely” restrict a major life activity to constitute a disability. More employees will satisfy the definition of disabled, including those with less severe impairments, and will in turn, qualify for protection under the ADA.|
|Minor and transitory impairments||The disability definition does not include impairments that are transitory or minor � i.e., with an actual expected duration of six months or less.||Employees with minor or temporary impairments are not covered by the ADA.|
|Episodic conditions or non-active conditions||An impairment that is episodic or in remission is still a disability if it would substantially limit a major life activity when active.||ADA coverage is extended and interactive process must be provided for employee with conditions whose symptoms may only appear occasionally, such as asymptomatic HIV, seizures, diabetes, or PTSD.|
|The effect of mitigating measures||An employee is considered disabled even if mitigating measures resolve or improve the impairment, overturning Sutton v. United Airlines, Inc.||Many more employees will qualify for ADA protection. Employees will receive ADA protection even if medication, hearing aid, prosthetics, interpreter, etc., ameliorates his or her disability (with an exception for eyeglasses or contact lenses).|
|Protection expanded/clarified for employees who are “regarded as” disabled||Employees who are “regarded as” disabled continue to enjoy protection under the ADA, but the standard for being “regarded as disabled” is clarified. The holding of Nassau County v. Arline is reinstated.||The employee only has to show that he or she was discriminated against because of an actual or perceived impairment, whether or not that impairment would limit or is perceived to limit a major life activity.|
|Accommodation of perceived disabilities||Resolves a split among federal appeals courts over whether accommodation is required for employee who employer regards as disabled.||Employers may not discriminate against employees they regard as disabled, but employers are not required to provide a reasonable accommodation to such individuals.|
|What constitutes a “major life activity”||Specifically includes activities which were not previously considered major life activities � e.g., concentrating, thinking, learning, and operation of a major bodily function, such as normal cell growth, immune system functions, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.||ADD/ADHD, high blood pressure, epilepsy, seizures, asthma, diabetes, cancer, AIDS/HIV are now among those impairments which will qualify employee for ADA coverage and protection.|
|Reverse discrimination claims||Eliminates claims of reverse discrimination.||An employee without a disability cannot sue the employer claiming that he or she was discriminated against because he or she lacked a disability.|
There is no doubt the ADAAA will increase the number of employees who meet the definition of disabled given the expanded definition and the fact that those with conditions controlled by medication or other mitigating/ameliorative measures will now come within the protection of the ADA. It is also unlikely that employers will prevail in arguing that a plaintiff/employee is not disabled and therefore not entitled to the protections of the ADA.
The ADAAA purposefully shifts the inquiry away from an employee’s particular impairment, to the determination of whether an employee with a disability is qualified to perform the essential functions of the position, to the interactive process, and to the ability to provide a reasonable accommodation. Thus, employers should consider taking the following steps:
- Review job descriptions to ensure that they faithfully track the essential functions of each position.
- Review disability discrimination policies. Most policies do not track language of the overturned cases and will continue to comport with the ADAAA, but all should include a prohibition against disability discrimination, notice requirements in the case of accommodations requests, and procedures for making complaints of discrimination.
- Provide refresher training for management and HR on the interactive process and reasonable accommodations obligations.
- Develop resources and a protocol to respond to requests for accommodations and consult with counsel before deciding that an employee is not entitled to an accommodation.
- Maintain records of disability claims, accommodation requests, and accommodations provided and/or denied, along with the rationale for the decisions made.
For answers to questions on the new ADAAA and its implications for your workplace, contact any member of Varnum’s Labor and Employment Practice Team at 616/336-6000.