Client Alert

ADA Amendments: New Protections for Employees and Key Obligations of Employers

September 2008

On September 25, 2008, President Bush signed the ADA Amendments Act of 2008 (the "2008 Amendment"), which amends the Americans with Disabilities Act ("ADA").  It becomes effective on January 1, 2009. The 2008 Amendment significantly broadens the coverage of the ADA by overturning recent U.S. Supreme Court decisions that had made it more difficult for individuals to establish they were "disabled" under and covered by the ADA. The bottom line of Congress' action is that many more people will be covered by the expanded definition of "disability." Consequently, employers will need to focus more on their obligation to provide reasonable accommodations.

The ADA applies to employers with 15 or more employees. Nearly every state has its own parallel law for small companies. Because there are many overlapping definitions, familiarity with the 2008 Amendment is critical. The changes made by the 2008 Amendment are material. Good employment practices, however, should go a long way towards helping employers mitigate increased risk of litigation. Following a brief summary of the most important changes made by the 2008 Amendment, this Client Alert concludes with some suggestions of good employment practices.

• Definition of "Disability" Must Be Construed More Expansively. Going forward, employers, courts and the EEOC must interpret "disability" (and as a result who is covered by the ADA) more expansively. The new law emphatically states that the definition of "disability" is to be construed "in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the ADA]."
  
  Similarly, the phrase "substantially limits" (recall that a "disability" requires a "substantial limitation" of a major life activity) is to be interpreted consistently with the purposes of the 2008 Amendment, i.e., broadly and expansively in favor of the individual. This expressly rejects the interpretation of this phrase by the U.S. Supreme Court in Toyota Motor Manufacturing v. Williams and by the EEOC in regulations. The EEOC interpreted "substantially limits" to mean "significantly restricted." In Congress' view, the EEOC set the bar too high.
  
  While these directives do not provide employers and their counsel with alternative definitions that they can use and rely on in analyzing questions under the ADA, two points are clear. First, more individuals will now have a "disability" for purposes of the ADA. And second, Congress has made clear that the focus of ADA inquiries should be on whether employers have complied with their legal obligations under the ADA, most notably the duty to provide a "reasonable accommodation."
  
• Mitigating Measures Are Disregarded. The 2008 Amendment overrides the U.S. Supreme Court's decision in Sutton v. United Air Lines by providing that the determination of whether an impairment substantially limits a major life activity is made without regard to the effects of mitigating measures (such as medications or medical equipment). There is an exception for the effect of ordinary eyeglasses and contact lenses, which can be considered. This change means, for example, that an individual with high blood pressure whose condition is effectively controlled by medication may nonetheless be considered to be "disabled" for purposes of the ADA -- the ameliorative effect of the medication must be disregarded.
  
• Episodic Impairments Can Be a Disability. The 2008 Amendment makes clear that a physical or mental impairment that is episodic or in remission will nonetheless be a disability if it would substantially limit a major life activity when active.
  
• What Is a Major Life Activity? As noted above, in order for an individual to be deemed "disabled" under the ADA, he or she must have a physical or mental impairment that substantially limits a "major life activity." It has not always been clear what constitutes a major life activity. The 2008 Amendment answers this question in part by providing a non-exhaustive list of major life activities. These include: caring for oneself; performing manual tasks; seeing; hearing; eating; sleeping; walking; standing; lifting; bending; speaking; breathing; learning; reading; concentrating; thinking; communicating; and working.
  
  Also included in this definition is a new sub-category of major life activity that encompasses the operation of major bodily functions. This includes: function of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
  
• What It Means To Be "Regarded As" Disabled. The ADA protects individuals who are disabled as well as individuals who are wrongly regarded by employers as being disabled. The 2008 Amendment changes current law by providing that an individual can be "regarded as" disabled if an employer discriminates against an otherwise qualified individual because of an actual or perceived impairment, whether or not the impairment substantially limits a major life activity. Such individuals now can also pursue a claim under the ADA. The 2008 Amendment does provide, however, that "transitory and minor" impairments cannot be the basis of a "regarded as" claim. Transitory impairments are defined as impairments with an actual or expected duration of six months or less. There is no definition of what a "minor" impairment is.
  
• No Obligation To Accommodate a "Regarded As" Individual. Resolving an issue that has divided the courts, the 2008 Amendment provides that an employer is not obligated to provide a reasonable accommodation to an individual who is "regarded as" disabled. It is somewhat curious that this was even an issue -- why should an employer have to accommodate an individual who is not actually disabled and how does one do that?
  
• No Claims of Reverse Discrimination. The 2008 Amendment makes clear that individuals cannot bring claims under the ADA alleging that they were treated worse because they do not have a disability. For example, individuals have tried to make out claims against employers alleging that it is unlawful for the employer to provide an accommodation to a disabled employee but not to others.

What Should Human Resources Personnel Do?

1. Review workplace policies and procedures to make sure they reflect the changes required by the ADA. Remember: some state laws may be even more expansive than the new federal amendment.
2. Sensitize (and periodically train) managers and supervisors to the changing requirements of the ADA and similar state and local laws.
3. Focus HR practices on how to help employees perform their work -- reasonable accommodation -- rather than focusing on whether an individual is in fact disabled under the law.
4. Be more wide ranging in the interactive dialogues with employees that the ADA requires, and timely document all accommodation efforts and results.
5. Remember to document timely legitimate performance criticism. With the substantial increase of newly-defined "disabled" applicants and employees, we anticipate many more health-related inquiries from the workforce, and ultimately more "retaliation" suits. Showing legitmate, non-discriminatory reasons for your actions will be imperative.
6. Make sure accurate job descriptions are on file for all employees.