Articles

CHANGES TO THE ADA

By

Stephanie E. Trumpp

The Americans With Disabilities Act ("ADA") applies to all employers with 15 or more employees. This law, first passed in 1990, has not had any major revisions until now. This new law, the ADA Amendments Act (ADAAA), effectively overturns several court decisions and parts of EEOC regulations that limited the ADA's coverage. The new legislation redefines disability to give more individuals protection under the law. As a result, employers must change the way they handle employees with impairments. Instead of focusing on whether an individual's impairment qualifies as a disability (and in turn qualifies the individual for an accommodation), the employer must focus on ensuring that it is complying with the ADA. The following is a summary of the changes that the ADAAA made to the ADA.

Scope of the Definition of Disability

The ADA defines "disability" as a physical or mental impairment that substantially limits a major life activity of an individual, a record of such impairment, or being regarded as having an impairment. The Supreme Court and other lower courts have narrowly construed this definition and excluded a broad range of individuals from coverage under the ADA including individuals with diabetes, epilepsy, cancer, muscular dystrophy, and prosthetic devices. The ADAAA seeks to change this. Although the ADAAA retains the same definition from the original ADA, it adds a rule of construction, stating that the definition of disability will be construed in favor of broad coverage of individuals to the maximum extent permitted by the ADA.

Mitigating Measures

In 1999, the Supreme Court decided Sutton v. United Airlines. This case narrowed the group of people covered under the ADA when the court ruled that employers must take into account mitigating measures (such as medication or medical devices) when determining whether a person was substantially limited in a major life activity. For example, if an individual took medication to control diabetes, then an employer could consider that individual in his or her medicated state. Now, under the ADAAA, when employers determine whether an individual's impairment substantially limits a major life activity, employer may not consider the individual's mitigating measures, such as medication, medical supplies, prosthetics, hearing aids, mobility devices, or oxygen therapy equipment. The ADAAA does however make an exception for ordinary eyeglasses or contact lenses which may be considered.

Substantially Limits

Interpreting the previous version of the ADA, the Supreme Court held that an impairment substantially limits a major life activity if it "prevents or severely restricts the individual from performing the activity. The Court held that the terms "substantially limits" and "major life activity" must be "interpreted strictly to create a demanding standard for qualifying as disabled." The ADAA has changed this. Now, employers must ignore the previous court rulings on "substantially limits" and interpret the term consistent with the finding and purposes of the ADAAA. The ADAAA also instructs the EEOC to revise its regulation that defines "substantially limits" as "significantly restricted" to be consistent with the ADAAA. Although the ADAAA does not provide a definition for "substantially limits" an examination of the legislative history of the ADAAA seems to suggest that "substantially limits" will be less severe than "severely or significantly restricts" but more severe than "moderately restricts."

Major Life Activity

In its previous version, the ADA did not list specific major life activities. So, the Supreme Court defined "major life activity "to mean an activity of central importance to most people's daily lives. Now, the ADAAA provides a nonexclusive list of major life activities. The ADAAA states that major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major bodily functions such as: the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions are also included in the definition of major life activity. Further, the ADAAA states the major life activity does not have to affect work.

Episodic Conditions

Courts have interpreted the ADA to require that episodic or intermittent impairments such as epilepsy or post-traumatic stress disorder, are not covered under the law. The ADAAA clarifies that an impairment that is episodic or in remission is a disability if the impairment would substantially limit a major life activity when active.

Regarded As Having A Disability

Previously, the ADA covered people who were "regarded as" having an impairment, which substantially limits one or more major life activities. The ADAAA has changed this and now provides that an individual is regarded as disabled if that individual has an actual or perceived impairment, regardless of whether the impairment limits a major life activity. The act does exclude from this definition impairments that are transitory and minor. As a result of this dramatically expanded definition, it is highly likely that most individuals claiming disability discrimination will include a regarded as claim and that the case law on this issue will grown.

Action Steps For Employers

More people will be eligible for reasonable accommodations under the ADAA. Those reasonable accommodations could include such things as tele-commuting, working from home and modified work schedules. Employers must be prepared to document if providing such requested accommodations would be an undue hardship to the employer.

Employers who are accustomed to sending employees for medical exams because of perceived impairment could be in trouble under the new ADAAA. The employer must argue the medical exam is job related and consistent with business necessity when requesting current employees to visit their doctor.

Even when employees bring regarded as claims, those employees still have the burden to prove that they are able to perform the essential functions of their job. This only emphasizes the importance of current and accurate job descriptions, which include essential functions of the job.

Adequate documentation will continue to be very important for employers. Employers should designate a go-to person for decision making for employment decisions with people alleging medical conditions.

Employers can count on more scrutiny of the interactive process that they engage in with their employees. Employers must not get stuck in the "definition of disability" stage. Instead, employers should focus on the employment action.

Employers may want to revisit denials of accommodation requests to employees As of January 1, 2009, those employees who were previously denied an accommodation may now be eligible for accommodations under the ADAAA.

Employers should stress that reliable, predictable performance is an essential function of the job.

When taking disciplinary action against employees, employers should not mention a medical condition. Let the employee tell you about the medical condition.