Client Update from the Employment and Labor Group - October 2008
EXPANDED REACH OF ADA WILL REQUIRE INCREASED ATTENTION BY EMPLOYERS
On January 1, 2009, the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA") will go into effect. Congress passed the ADAAA in response to a number of U.S. Supreme Court and lower court rulings that it believed substantially weakened important protections of the original Americans with Disabilities Act ("ADA"). The amendments, intended to restore the "spirit and intent" of the original ADA legislation, will cause a much larger group of employees to be deemed disabled and, therefore, protected under the law. As highlighted by the following summary of the ADAAA's impact, employers will need to be even more careful when making decisions affecting applicants and employees who may have physical or mental impairments.
Broader Interpretation of "Disability." In assessing what constitutes a "disability," the ADAAA directly charges reviewing courts to construe that term "to the maximum extent permitted" under the law. This is significant because various other ADAAA revisions, discussed below, will increase the number of employees protected by the definition of "disability." The definition of "disability" also now includes any impairment that is episodic or in remission. This means that a condition, like cancer, that is not currently impairing the individual would still be a disability if it would substantially limit a major life activity "when active."
"Mitigating Measures" May Not Be Considered. Under a prior U.S. Supreme Court decision, physical and mental impairments were not considered "disabilities" for purposes of ADA protection if they were controlled with "mitigating measures," such as medication or corrective devices (e.g., hearing aids or prosthetics). The ADAAA explicitly states that such measures, unless they are eyeglasses or contact lenses, may not be taken into account when analyzing whether the impairment substantially limits a major life activity. Thus, the employer must consider whether the impairment constitutes a disability without considering the corrective impact of the mitigating measures. Previously, certain employees who had impairments controlled by medication or treatments, such as asthma, diabetes or epilepsy, could be excluded from coverage because their condition was not severe enough to warrant coverage. Now, those employees likely fall into the definition of disability and therefore are protected.
Extension of "Major Life Activities" Definition. In order to be deemed disabled under the law, an employee must have an impairment that substantially limits "one or more major life activities." The ADAAA sets out a specific list of "major life activities," which include: caring for oneself, performing manual tasks, seeing, hearing, breathing, lifting, bending, learning, reading, concentrating, thinking, communicating and working. Further expanding the definition of "major life activities", the ADAAA adds "any major bodily function" to the list, specifically enumerating coverage for immune system, normal cell growth, digestive, bowel, bladder and reproductive functions, amongst other bodily functions.
Rejection of "Substantial Limitation" Standard. The ADAAA also rejects the U.S. Supreme Court's stringent interpretation of "substantially limits a major life activity." According to the Supreme Court, that phrase required an individual's impairment to prevent or severely restrict an activity of central importance to the individual's daily life. While the ADAAA rejects that pro-employer definition, it fails to provide an alternate standard. Instead, the ADAAA requires the EEOC to define "substantially limits," which will likely result in a lower threshold.
Expansion of "Regarded As" Coverage. The ADAAA also makes it easier to prove an employer discriminated against someone it wrongly "regarded as" having a disability. Under the original ADA, an individual bringing suit needed to prove the employer regarded the employee as being substantially limited in a major life activity. This was a difficult standard to meet. Now, the individual only has to show that the employer perceived the individual as having a mental or physical impairment, regardless of whether the impairment substantially limits, or is perceived to limit, a major life activity.
Pro-Employer Clarifications. The ADAAA does clarify that "regarded as" claims cannot be based on impairments that are minor or "transitory," i.e., expected to last less than six months. In addition, the ADAAA makes it clear that employers do not have to provide a reasonable accommodation to individuals who are "regarded as" disabled. Finally, the ADAAA prohibits "reverse discrimination" claims. Thus, a non-disabled employee may not claim discrimination if a disabled employee is favored in an employment decision.
Preparing for the Changes. If you have 15 or more employees, you should consider taking the following steps to prepare for the impact of the revised law:
- Review and, if necessary, revise any applicable handbook policies, interactive process questionnaires and disability-related employment information;
- Train human resource personnel, supervisors and interviewers on the new amendments and how they apply to their daily operations;
- Be prepared to consider offering accommodations to a broader reach of employees based on the expanded reach of the law;
- When addressing specific disability determinations and accommodation concerns include supervisors, human resource personnel and legal counsel in the analysis and apply the revised disability laws; and
- Manage litigation risks proactively by consulting now with your legal advisers, whether in-house or outside employment counsel, to counteract the inevitable rise in the number of disability lawsuits, which also will become more costly and difficult to defend.
Should you have any questions about the ADAAA revisions or how to best prepare your organization for the resulting impact, please contact the Walter & Haverfield attorney with whom you normally work or any of the following attorneys in the Employment and Labor Group.
The information in this newsletter is a summary of often complex legal issues and may not cover all the 'fine points' related to a specific situation or court jurisdiction. Accordingly, it is not intended to be legal advice, which should always be obtained in consultation with an attorney.
