Amendments to the Americans with Disabilities Act became effective January 1, 2009
by Mary Elizabeth "Betsy" Davis
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Betsy Davis |
Happy New Year! As they ring in the New Year, employers must be mindful of and comply with amendments to the Americans with Disabilities Act ("ADA"). On September 25, 2008, the ADA Amendment Act ("ADAAA" or the "Amendment") was signed into law and became effective on January 1, 2009. Because the ADAAA broadens the definition of disability, the ADAAA instructs courts and employers to adopt a broad standard when determining whether an individual is considered disabled. The Amendment shifts the inquiry from whether the individual has a disability, to whether covered entities have complied with their obligations to reasonably accommodate disabled applicants and employees.
Employers should pay careful attention to the new rules for the definition of disability under the ADAAA and remember the following principles:
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The term "substantially limits" is to be interpreted consistently with the ADAAA and an impairment that substantially limits one major life activity need not limit other major life activities to be considered a disability;
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An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
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A very broad non-exclusive list of conditions should be considered major life activities including without limitation "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working";
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"Major bodily function" is a new classification of "major life activities." Under the ADAAA, major life activities also include the operation of "major bodily function, including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions."
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Mitigating measures, for example, medication or treatment, shall not be a factor when determining whether an impairment substantially limits a major life activity and the only mitigating measures that can be considered are ordinary eyeglasses or contact lenses that fully correct visual acuity or eliminate refractive errors; and
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People who are regarded as being disabled are not entitled to reasonable accommodation or modification, but can still bring a claim for violation of the Americans with Disabilities Act if they are discriminated against because the employer or its agent "regards" them as having a disability.
The ADAAA reverses two (2) seminal Supreme Court cases, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S. Ct. 681 (2002) and Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999), finding the Supreme Court's interpretation of the ADA and in particular the Court's interpretation of who is considered "disabled," too restrictive and not in keeping with the spirit of the ADA. The liberal interpretation of "disabled" in the Amendment will likely lead to a larger population of employees who will now be considered disabled under the Amendment and who will seek accommodations as well as a larger number of employees who will claim they are "regarded as" disabled in disparate treatment claims.
The ADAAA does contain some provisions considered favorable for employers. These provisions include the following principles:
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Reverse discrimination claims, or claims by non-disabled individuals that they have been discriminated against, do not exist under the ADAAA;
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No significant change to an employer's obligation of non-discrimination or reasonable accommodation exists in the Amendments; and
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Existing exclusions are not amended, therefore transvestism, gender identity disorders, current use of illegal drugs and kleptomania continue to be excluded from the definition of "disability."
The ADAAA requires the U.S. Equal Employment Opportunity Commission ("EEOC") to create new regulations, but does not set a new regulation deadline. Based on a deadlock vote of the EEOC on December 11, 2008, the ADAAA goes into effect on January 1, 2009 without any interpretive regulations to assist employers in navigating the new law. When the EEOC does make new regulations, it will publish them and allow public comment for sixty (60) days before the regulations may take effect.
Employers must begin training their supervisors and managers about these new rules. In addition, employers should train managers, supervisors and decision makers not to connect an impairment or perceived impairment with an employment decision. Frequently decision makers inform employees that hiring, promotion or termination decisions were based on an employee's impairment or perceived medical condition. At a minimum, these mis-statements create "regarded as" disability claims. For example, a supervisor who reassigns an employee "because he believes the employee has cancer" in an effort to assist an employee, creates liability for the employer even if the employee's actual condition does not qualify as a disability under the ADAAA. In some instances, it is helpful to refrain from sharing with managers and supervisors information regarding employee health conditions and impairments altogether. It is the intention of Congress to create an interactive process between employer and employee to discuss accommodation. Because the ADAAA enacts new broad standards regarding employees who will be considered "disabled," employers are wise to seek independent outside counsel in handling accommodations requests.
For more information regarding the rules under the ADAAA or responding to an employee's accommodation request, please contact Betsy Davis (804) 697-2035.
