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AMERICANS WITH DISABILITIES ACT (ADAAA) EXPANSION
On September 25, 2008, President Bush signed the ADA Amendments Act of 2008 (ADAAA) into law. The new law takes effect on January 1, 2009. On September 11, 2008, the Senate approved the ADAAA by unanimous consent. Earlier, on June 25, 2008, the House of Representatives approved a similar bill (H.R. 3195) by a vote of 402-17.
The purpose of the new law is to reject a number of U.S. Supreme Court rulings, including a host of lower court rulings that narrowed the definition of disability as it was promulgated under the Americans with Disabilities Act (ADA) from its enactment in 1990.
The new law overturns the U.S. Supreme Court's (www.supremecourtus.gov) decision in Sutton v. United Airlines that mitigating measures must be considered in determining whether an individual is disabled, and the Court's decision in Toyota v. Williams, which takes a restrictive view of what constitutes a substantial limitation in the major life activity of working.
The ADAAA will make it much more difficult for employers to take the position that an individual is not "substantially limited in a major life activity" and, therefore, not disabled under the ADA. More requests for accommodation (and more lawsuits) are expected to follow.
IMPLICATIONS OF THE NEW LAW
- Amends the definition of "disability" by providing clarification to Congress' original intent.
- Rejects several Supreme Court rulings that narrowed the definition of "disability."
- Makes it easier for employees to show that an impairment is "substantially limiting."
- Prohibits consideration of "mitigating measures" such as medications, medical supplies or equipment, when determining whether an impairment constitutes a disability.
- Provides that impairments that are episodic or in remission must be assessed in their active state
- Creates a non-exhaustive listing of "major life activities" to also include a subcategory of "major bodily functions"
- Clarifies that an individual comes within the law's "regarded as" protective umbrella by showing that he/she has been discriminated against because of an actual or perceived physical or mental impairment, whether or not the impairment limits a major life activity
- Makes clear when employers are not required to provide a reasonable accommodation to individuals who are "regarded as" disabled
- Reiterates that impairments that are minor or transitory are NOT protected disabilities under federal law (though state/local law should be reviewed)
- Reaffirms that the burden of proof resides with the employee to prove that he/she is a qualified disabled individual
- Clarifies that a person without a disability cannot bring an action for reverse discrimination (on the basis of not having a disability)
- Preserves several important provisions of the ADA, including those addressing reasonable accommodations, the interactive process, individualized assessments and undue hardship
EXPANSION OF THE "DEFINITION OF DISABILITY"
The ADA defines "disability" as: (1) a physical or mental impairment that substantially limits one or more of the major life activities; (2) a record of such impairment; or (3) being regarded as having such an impairment. While the amendments fundamentally maintain the ADA's "disability" definition, the ADAAA takes several steps to achieve a broader, more generous interpretation and application of these terms.
"Substantially limits" is a term in the definition of disability although the legislation does not define the term. In Toyota v Williams, the Supreme Court concluded that to be "substantially limited" in a major life activity, an "individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives". Both the Senate and The House stated the Supreme Courts interpretation of ADA in Williams, set an inappropriately high threshold for employees to establish rights and be afforded protection under the ADA by effectively defining "substantially limits" to mean "prevents or severely restricts". The Senate report in particular makes it clear that the test is not to be a demanding standard but rather one that ensures "appropriately broad coverage under this act". The 2008 amendments delete two findings in the ADA which led the Supreme Court to narrow the definition of "disability".
1. A reference that some 43 million Americans suffered from some disabling condition.
2. Individuals with disabilities are a discrete and insular minority.
The ADAAA provides in its Rules of Construction Regarding the Definition of Disability that the "definition of disability in this act is to be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act."
The Disability Rules of Construction also make it clear that an impairment that is episodic or in remission must be considered a disability so long as that impairment in its active state would be substantially limiting.
"Major Life Activities" will now be expanded to include major bodily functions, including "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working."
"Major life activities" now also include the "operation of major bodily functions," such as functions of the "immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions."
Before the expansion, major life activities were limited to self-care, receptive and expressive language, learning, mobility, self-direction, capacity for independent living, and economic self-sufficiency. Today, a limitation in any one of these activities could qualify someone as disabled under ADA.
Mitigating Measures - Since the inception of the ADA, the courts have narrowed the definition of disability such as limiting what is considered a "major life activity". For example, a person with uncontrollable diabetes might be considered disabled, but if the diabetes is being controlled through medication, diet and exercise, those "mitigating" factors would be considered by the court and the person would likely not be protected by ADA.
Under the ADAAA, a determination that an individual is substantially limited in a major life activity is to be made without regard to mitigating measures. Mitigating measures have included medications, medical supplies, equipment or appliances used for the individual's impairment. Prescription eyeglasses and contact lenses are excluded and may not be considered when assessing "substantially limited" in a major life activity. This provision overturns a 1999 Supreme Court ruling that mitigating measures had to be considered in determining whether the impairment substantially limited a major life activity.
"Regarded As" Having an Impairment - ADAAA clarifies those individuals that establish they have been subjected to prohibited action based on an actual or perceived physical or mental impairment are protected under the "regarded as" language in the act. However, individuals who are "regarded as" having impairments that are minor or transitory or are expected to be less than six months in duration are not protected under the ADAAA.
Discrimination on the Basis of Disability - ADAAA also amends Section 102 of the ADA to mirror the nondiscrimination protection of Title VII of the Civil Rights Act of 1964. This change focuses on whether a qualified individual has been discriminated against on the basis of disability and not unduly focused on whether an individual is a person with a disability. It remains the employee's responsibility to establish if he or she is a qualified individual with a physical or mental impairment who can perform the essential functions of the job.
WHAT EMPLOYERS NEED TO DO
ADAAA is an expansion of the federal disability law and, therefore, should not require employers who already have adequate policies and procedures in place to comply with ADA to make major changes. This new law will, however, likely increase the number of disabled individuals in the workplace. Employers will need to consider individuals with conditions controlled by medication or other mitigating measures as coming within the protective umbrella of ADA.
Employers Salary Continuation, Short and Long Term Disability plans should not see an increase in incidence or duration of disability since these plans have their own definition of disability that govern when an employee is eligible for disability benefits. However, with the expectation that more employees will be protected under the act, employers should expect more employees to request accommodations especially those disabled employees who could return to work with limitations or restrictions
The exceptions that exist today to reasonable accommodation will remain under ADAAA. Employers would not be expected to accommodate if the reasonable accommodation would:
- Constitute an "undue hardship";
- Conflict with a seniority clause (in most instances);
- Pose a "direct threat to the safety of the worker or other workers."
Actions employers should consider prior to the January 1, 2009, effective date include:
- Review existing policies and procedures related to compliance with ADA.
- Conduct refresher training for appropriate staff on ADA compliance policy emphasizing the interactive process and how to handle requests for reasonable accommodations.
- Keep records or logs of disability claims, accommodations requests, accommodations provided and/or denied, along with documentation on the rationale for the decision made.
- Make sure job descriptions are up to date and spell out essential job functions.
- Make sure any diversity training provided to employees includes disability.
In the near term, challenges under the expanded ADA are likely to arise around "reasonable accommodation" issues and from individuals claiming to be "regarded as" disabled. If employers resist the broadened coverage envisioned by Congress under ADAAA. We may also see an increase in litigation under the revised definition of disability.
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