The ABCs of the ADAAA: What Employers Need to Know About Recent Changes to the Americans with Disabilities Act
The ADA was passed to provide legal protections for, and to end discrimination against, workers with disabilities. The ADA is a wide-ranging civil rights law that prohibits discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal.
Under the ADA, an individual is considered to have a “disability” if that individual either (1) has a physical or mental impairment which substantially limits one or more of that person’s major life activities, (2) has a record of such an impairment, or (3) is regarded by the covered entity as having such an impairment. The determination of whether any particular condition is considered a disability is made on a case by case basis.
When the ADA was first passed into law in 1990, federal courts were very strict in determining which employees met the ADA’s definition of a “disability,” resulting in the dismissal of many cases. A series of such court decisions made it increasingly difficult to qualify for the law’s protections. To remedy this problem, Congress passed the ADA Amendments Act of 2008 (ADAAA), which went into effect on January 1, 2009. The ADAAA made five changes to the ADA that are significant.
- It provides that the definition of the ADA “disability” must both be more “flexible” and “broadly construed.”
- It expands the list of “major life activities.”
- It provides that courts can no longer consider whether “mitigating measures,” such as medication or assistive technology, reduce the impact of impairment on an individual.
- It states that diseases that are “episodic” or in remission may still be “disabilities.”
- It provides that employees who claims they are “regarded as” disabled can now make an ADA claim, even if the “perceived” disability does not impact a major life activity.
It is important that employers be up to speed on these changes. This is especially important because the ADAAA created a shift of emphasis in applying the law. In enacting the ADAAA, Congress instructed that it should be interpreted to favor “broad coverage of individuals under the ADA,” and that courts must focus not on whether an employee is “disabled,” but on whether the “employer is complying with its obligations under the law.”
- A) “Disability” is Now Defined Broadly as a Physical or Mental Impairment
Under the ADAAA, “physical or mental impairments” include any psychological disorder or condition, any cosmetic disfigurement, or any anatomical loss effecting the neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine systems. Also covered is any mental or psychological disorder, such as an intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.
B) Substantially Limits
Previously, the U.S. Supreme Court held that a disability “substantially limits” a major life activity if that activity is “significantly restricted.” In the ADAAA, Congress expressly gave the Equal Employment Opportunity Commission (EEOC) the authority to revise its regulations regarding the definition of “substantially limits” to make them consistent with the ADAAA’s purpose. Under the proposed EEOC regulations, an impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
- Major Life Activities
The list of “major life activities” is now substantially longer.First, the ADAAA offers what is described as a “non-exhaustive” list of “major life activities” which include reading, learning, working, “communicating,” “concentrating,” “thinking,” “caring for oneself,” walking, eating and sleeping. As a second category of “major life activities,” the ADAAA states that any impairment that interferes with the “major bodily systems or organs” (i.e., neurological, reproductive, digestive, respiratory, circulatory) is a disability covered by the ADA. An individual whose impairment substantially limits a major life activity need not demonstrate a limitation in the ability to perform activities of central importance to daily life. For example, someone with a 20-pound lifting restriction need not also show that he is unable to perform activities of daily living that require lifting in order to be considered substantially limited. An impairment that “substantially limits” one major life activity need not limit other major life activities in order to be considered a disability.
- Mitigating Factors May Not Be Considered in Determining Whether an Impairment is a “Disability” under the ADAAA.
Mitigating measures are steps that can be taken by an individual to reduce or eliminate the effect of a disability, like medication, devices, or exercise. The ADAAA provides that employers and courts cannot consider any “mitigating measures” (except for eyeglasses and contact lenses) in determining whether an employee has an ADA-protected “disability.” If an employee takes medication to control diabetes, epilepsy, or depression, for example, or uses a hearing aid, a pacemaker or some other device, that employee will now qualify as “disabled” – regardless of whether they exhibit symptoms that interfere with their ability to work.
- Episodic Impairments or Those in Remission Are Covered Under the ADAAA
Under the ADA, employees who had diseases that were in remission were not protected if they were not currently “substantially limited” in a major life activity. Now, the ADAAA states that employees suffering from “episodic” impairments or impairments in remission are protected under the ADA, if the condition would substantially limit a major life activity when active.
- Expanded Protection for Employees Who Are “Regarded As” Disabled
The ADA had always protected those who were “regarded” or “perceived” as disabled, even if they were not presently suffering from any disability, but only if the employee could prove that the alleged disability would have been “substantially limiting” and that the employer believed the disability substantially limited a major life activity. Under the ADAAA employees who have faced discrimination in the workplace because they were regarded as having a disability by their employers are protected even if the impairment would not substantially limit a major life activity. In order to qualify as “regarded as disabled” under the ADAAA, an individual must only prove that his or her employer took discriminatory action against him or her because the employer thought the employee had a disability.
The ADAAA did not change the definition of reasonable accommodation, but does clarify that only individuals who meet the first (actual disability) and second (record of a disability) parts of the definition are entitled to accommodations. Individuals who only meet the third part (regarded as) are not entitled to accommodations. Even though the definition did not change, it is clear that with a broader definition of disability, more focus will be placed on providing reasonable accommodations.
One thing employers should keep in mind regarding a request for reasonable accommodation is that the accommodation does not have to be tied to the substantially limited major life activity that established that the employee has a disability. For example, a person with cancer may establish that he has a disability because he is substantially limited in normal cell growth, which is listed as a major life activity under the “bodily functions” category in the Amendments Act. However, his accommodation request may be related to nausea resulting from his medical treatment. Once the employee establishes that he has a disability, then the employer must consider providing accommodations for any limitations he has as a result of his impairment, not just the limitation that established his disability.
Remember that the reasonable accommodation obligation under the ADA is flexible. Employers can choose among effective accommodation options and do not always have to provide the requested accommodation. Employers do not have to provide accommodations that pose an undue hardship, nor do they have to provide as reasonable accommodations personal use items needed in accomplishing daily activities both on and off the job. Employers do not have to make an accommodation for an individual who is not otherwise qualified for a position, nor remove essential functions, create new jobs, or lower production standards as an accommodation.
WHAT THE ADAAA MEANS FOR EMPLOYERS
The implications of the ADAAA are profound for employers, with a much broader scope of employees qualifying as disabled under the ADAAA. Under the ADAAA, one can now argue that anyone treated for a chronic condition (or one that risks returning) will be forever “disabled”– even if that person has no signs or symptoms. In fact, because of the natural aging process, most people will develop a condition at some point that will be considered a disability under the ADAAA.
Combining this new ADAAA with the Family Medical Leave Act (“FMLA”), every employee who has a “disability” will now likely also qualify for FMLA leave. Employers may see more demands for intermittent FMLA leave, as well as more employees seeking longer periods of time off. Remember, you may not use FMLA leave as a basis to discipline an employee for poor attendance. Employers are cautioned to grant reasonable FMLA to employees with a disability. Some employees may go on disability leave and request FMLA time off once the disability leave time runs out. Employers are cautioned to use an interactive process to work out a reasonable period of FMLA leave following a disability leave.
Tips for Employers
- Employers must review their companies’ ADA policies and processes to make sure they accurately reflect the law, and make sure these policies actually work.
- Employers should update the company policy’s definition of a “disability.”
- Companies should update job descriptions and document the essential functions of every job. Make sure that job descriptions are accurate and define the “essential” functions of every position.
- Employers should review job accommodation procedures. The ADA does not require employers to hire unqualified applicants with disabilities, nor does it require employers to retain employees who can no longer perform the essential functions of their jobs because of a disability. However, the ADA does prohibit employers from using unnecessary qualification standards to weed out applicants with disabilities, relying on inaccurate job descriptions to determine that an employee with a disability can no longer perform her job, and failing to provide reasonable accommodations absent undue hardship.
- It is crucial to ensure sure that the “accommodation process” happens and is documented. There must be a record that the “interactive process” was followed in every case. Do not make knee-jerk decisions, assuming that the employee is not “disabled,” that there is no “light duty,” and that every employee must be 100 percent healed before they can return to work. The company may have to err on the side of “over-accommodation” and provide reasonable accommodations whenever it can.
- Document everything, as good documentation will be essential if you are challenged. Because the focus of the ADA will shift away from the definition of disability and toward whether employers complied with their obligations, documentation of actions and decisions can be very important if an employee alleges discrimination; especially with the broad coverage under the “regarded as” part of the definition, most cases will hinge on whether an employer discriminated.
- Communicate with employees. Many problems occur because employers do not let employees know, for example, how their performance needs to improve, the status of their accommodation requests, or why an accommodation request was denied. Employees need to be informed so they can have the opportunity to address performance problems or suggest alternative accommodation options.
- Employers may decline to put an employee on a particular job if it will pose a “direct threat” to the safety of themselves or others. Remember that the employer bears the burden of proving a “direct threat,” which is defined as a “significant risk of substantial harm . . . that cannot be eliminated or reduced by reasonable accommodation.” The employer’s proof and the factors it considered all need to be carefully documented.
- Employers should avoid making assumptions or comments about employees’ medical conditions, which could lead employees to believe that decisions were made on the basis of their real or perceived disabilities, even if that’s not the case. In general, it is the employee’s responsibility to let the employer know that a conduct or performance problem is disability-related and to request an accommodation to overcome the problem. There is no reason for an employer to bring up medical issues first.
- Employers must train all supervisors, managers and human resources personnel on the new standards. They are often the first to hear requests for light duty, and other claims of disabilities. They need to understand how to respond, or they may create liabilities for the company. If nothing else, employers should train their frontline to refrain from mentioning medical conditions unless relevant, to recognize accommodation requests, and to remember who to contact for assistance. Training immediate supervisors and managers helps reduce retaliation claims. Immediate supervisors need to understand that making negative or derogatory remarks in response to an accommodation request can be considered retaliation.
The ADAAA creates a broad class of employees who can claim they are “disabled,” and are potentially entitled to protected leave and job accommodations. The ADAAA also contains a private right of action, allowing employees who believe that they have been discriminated or retaliated against to sue their employer. In order to avoid such suits, employers must understand their obligations, update their policies, and train their managers and HR staff about the recent changes to the ADAAA.