Employers get ready: ADA amendments require prompt attention
September, 2008
President Bush signed into law the ADA Amendments Act ("ADAAA"), which creates new potential liability for employers and broadens the scope of who will be considered to be an individual with a disability. Employers must be aware of the changes in order to avoid inadvertently encountering liability for violating the statute. The ADAAA specifically overturns a number of United States Supreme Court decisions interpreting the ADA which were favorable to employers. The ADAAA will take effect January 1, 2009.
Definition of Disability. The ADAAA provides that the definition of disability must be broadly construed and that "[t]he question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis." The ADA is to be "construed in favor of broad coverage of individuals." In particular, that part of the definition of disabled, which requires an individual to be "substantially limited" in a major life activity by a mental or physical impairment, had been interpreted by the Supreme Court to require the individual to be "significantly restricted." The ADAAA states that is too high a standard, and directs the EEOC to revise its regulations in that regard. The result will be that a greater number of individuals with impairments will be found to have a disability, and thus be entitled to protection under the ADA.
Moreover, the ADAAA expressly rejects the Supreme Court's ruling that whether an impairment is substantially limiting must be determined by taking into consideration mitigating factors – for example, insulin for a diabetic. The new legislation provides that the analysis must be done without regard to any mitigating factors, once again broadening the scope of individuals who will be found to satisfy the definition of disability. The ADAAA makes exceptions for ordinary eyeglasses and contact lenses, which may be taken into account.
"Regarded As" Disabled. The ADAAA also makes it easier for an individual to meet the definition of a person regarded as having a disability. This part of the definition – which lies completely within the control of the employer – provides that an individual will qualify for protection under the ADA if the individual is regarded as having an impairment which substantially limits a major life activity. Thus, an employer could previously avoid liability by showing that while it regarded an individual as having an impairment, the impairment was not regarded as substantially limiting a major life activity. The ADAAA changes this. It provides that an employer will be liable under this theory if the individual can prove that he or she was subjected to action prohibited by the ADA "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." Once again, the scope of those individuals qualifying under the ADA has expanded.
Employer Response. Employers have only three months to protect themselves from the new legislation. Actions to be taken should include reviewing existing protocols for responding to requests for reasonable accommodations. Specifically, employers should ensure those protocols conform to the new definitions. A review of job descriptions is also a good idea in order to ensure job functions are spelled out. Most important, however, will be the training of front-line supervisors in the new concepts to ensure that these supervisors do not inadvertently regard an employee as disabled, and to ensure that these supervisors pass along issues related to disabilities to the proper persons within the company, likely HR professionals, who will know how to implement the new definitions. Once the new EEOC regulations are issued, it will be incumbent on employers to review them and make sure that their HR professionals and front-line supervisors are aware of any changes imposed by the new regulations as well.
As you can see, this area of the law could mean more ADA-related claims and lawsuits for employers. Please contact your Bullivant employment attorney to discuss policies and training.