THE NEW ADA AMENDMENTS – WHAT CAN EMPLOYERS EXPECT IN 2009?

Robin Foret
October 6, 2008 — 2,874 views  
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In September of 2008, President Bush signed into law the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA” or the “Amendments”), which will become effective on January 1, 2009.  The ADAAA amends the Americans with Disabilities Act of 1990 (“ADA” or the “Act”) in an effort to expand protections to persons with disabilities in the workplace.  The Amendments attempt to clarify the intended meaning of the term “disability” under the ADA, as well as reverse certain United States Supreme Court decisions and regulations of the Equal Employment Opportunity Commission (“EEOC”) thought to be too restrictive and burdensome for employees.  Most believe that the Amendments will create further burdens on employers and will increase the number of claims filed.  On a positive note, the Amendments may help reduce the confusion with respect to who is disabled within the meaning of the ADA.

 

Generally, the ADA prohibits employers from discriminating against a person with a disability, and requires that employers provide reasonable accommodations that will allow disabled individuals to perform the essential functions of their job.  The ADA defines a person with a disability as: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) someone who is regarded as having a physical or mental impairment (even though there is no impairment or the impairment is not as limiting as believed by the employer).  Although the basic definition remains the same, the ADAAA provides much more detail.  The major clarifications are as follows:

 

Definition of Disability – the Amendments provide specific examples of major life activities to include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.  The operations of bodily functions such as the circulatory, endocrine and reproductive functions are included.  Moreover, episodes of impairments or medical conditions that are in remission (but not transient in nature) are disabilities if they would substantially limit a major life activity when active.  This means that diseases like diabetes, epilepsy and high blood pressure could qualify as disabilities under the Act as amended.

 

Reversal of Prior Interpretations – believing that the 1990 Act was interpreted in a manner far too narrow to accomplish the ADA’s original intent, the Amendments reverse certain United States Supreme Court decisions that had the effect of limiting the number of employees who had a disability that was substantially limiting under the Act.  As of January 1, 2009 the following changes will occur:

 

-   Mitigating measures – the decision as to whether an employee is disabled must be made without regard to mitigating measures such as medication, prosthetics and medical equipment.  Previously, under Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), mitigating measures were taken into consideration when determining whether a disability existed.  As a result, far fewer individuals were considered disabled and were not protected by the Act.  An exception, however, exists for the use of ordinary eye glasses and contact lenses, which can still be considered when evaluating disability.  

 

            -   Substantially limiting – In 2002, the United States Supreme Court decided Toyota Motor Manufacturing Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which held that in order to be substantially limiting, an individual must have an impairment that prevents or restricts activities that are central to most peoples’ daily lives, in contrast to restricting the ability to perform specific job duties.  Finding this decision too restrictive to serve the purpose of the ADA in that it prevented a large number of employees from qualifying as disabled, the ADAAA announced that the Act must be construed in favor of broad coverage to the maximum extent permitted by the Act.   The ADAAA states that the Act “should not demand extensive analysis.”

 

            -   EEOC Regulations – The ADAAA also directs the EEOC to revise current regulations to make its definition of substantially limiting less restrictive to be consistent with the Amendments.  Specifically, the EEOC regulation that uses the term “significantly restricted” is too high a standard for employees to be required to meet.  

 

            -   Regarded as – The Amendments provided some help to employers by clarifying that employers need not provide reasonable accommodations to individuals who are regarded as disabled, but who are not actually disabled. 

 

Basic Duties Unchanged – The basic duties of an employer remain unchanged, as well as the evaluation of what constitutes a reasonable accommodation under the Act.  Employers will still be able to use the “undue hardship” defense to making reasonable accommodations when appropriate under current law.  

 

No Reverse Discrimination – The ADAAA states that reverse discrimination claims are not permitted under the Act.  Thus, employees may not assert reverse discrimination claims against their employers when other employees who are disabled are given accommodations to which the individual without a disability may not be entitled.

 

Compliance Tips – The principle change created by the ADAAA is that more employees will be able to qualify as disabled under the Act, which means that more employees will be entitled to the ADA’s protections.  The effort to include more employees within the definition of “disabled” will likely result in an increase of workplace harassment claims. Workplace comments, such as jokes about someone’s weight or height, are probably off limits.  In addition, employers should do the following:

 

-   Review handbooks to make sure language is in compliance with the ADAAA.

 

-  Check internal policies to insure compliance with the ADAAA.     

 

-  Discrimination complaints and requests for accommodations must be taken seriously.

 

-   All managers and supervisors should be aware of the new Amendments.

 

-   Document employment files when making decisions concerning ADA related requests.

 

 

The information contained in this article is not designed to address specific situations, and does not include rules and regulations that apply to all states.  If you have questions concerning this topic, you should consult with legal counsel of your choice to obtain advice on various fact specific matters. 

Robin Foret

The Foret Law Firm

Robin Foret practices in the areas of employment law, commercial litigation and specialty insurance defense claims. She handles a variety of employment matters such as theft of trade secrets, breach of employment agreements, non-competition agreements, wage and hour issues under the Fair Labor Standards Act (FLSA), discrimination and harassment issues under Title VII of the Civil Rights Act of 1964 (Title VII) and the Texas Commission on Human Rights Act (TCHRA), the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA) issues, and the Sarbanes-Oxley Act (SOX). Robin has handled a wide variety of employment law matters for employers, as well as for executive-level employees, before agencies, and state and federal courts.