The New ADA:
The Americans with Disabilities Amendments Act of 2008

Effective January 1, 2009, the Americans with Disabilities Amendment Act (ADAA) took effect. This legislation significantly broadens the federal definition of the "disabilities" that require accommodation under the Americans with Disabilities Act of 1990.  

 Americans with Disabilities Act of 1990

Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and labor organizations.

An individual with a disability is defined as a person who:

• Has a physical or mental impairment that substantially limits one or more major life activities;

• Has a record of such an impairment; or

• Is regarded as having such an impairment.

A qualified employee or applicant with a disability is defined as an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:

• Making existing facilities used by employees readily accessible to and usable by persons with disabilities.

• Job restructuring, modifying work schedules, reassignment to a vacant position;

• Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.

An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids.

Title I of the ADA also covers:

       Medical Examinations and Inquiries
Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer's business needs.

       Drug and Alcohol Abuse
Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA's restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.[1]

ADAA Expands Terms of ADA’s Coverage

The ADAA expands the interpretation of several key terms of the ADA’s coverage which has been narrowly construed by case law since the law was enacted in 1990.

New Definition for “Substantially Limits”

Over the years, tort law (Toyota Motor Manufacturing v. Williams, 2002) and the Equal Employment Opportunity Commission (EEOC) have defined an impairment as a disability under the ADA if it substantially limits, prevents or significantly restricts one or more major life activities. The amendment rejects this interpretation and mandates the interpretation of the term: “substantially limits” in a manner that encompasses a broader scope of protection for individuals. This action will make it easier for an individual to prove that an impairment qualifies as a ADA disability.    

ADA Broadens Major Life Activities

The ADAA broadens the definition of a “major life activity,” specifically describing it to include, 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. Major life activities also include bodily functions relating to the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproduction.[2]

By broadening the definition of   major life activity, the amendment makes protection under the ADA available to a larger group of employees, as a wider range of physical and mental impairments will now meet this definition.

Mitigating Measures

The ADAA will prohibit consideration of any mitigating measures, other than “ordinary eye glasses or contact lenses,” when determining whether an impairment is “substantially limiting.”  Mitigating measures such as hearing aids and medications cannot be considered when determining if someone has an ADA-recognized disability.  Again this broadens the scope of employees that can be protected under the ADA.

 “Regarded” as Having a Disability

The ADAA provides that an individual can meet the requirement of being “regarded” as having a disability if they have been subjected to an unlawful employment action 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. For example, if an employee is fired because they are perceived to have an impairment, the employee meets the requirement of being regarded as having a disability under the amendment.

Episodic Impairments

The ADAA clarifies the law surrounding episodic impairment to state if an employee has an impairment that when active would substantially limit a major life activity, they have a protected disability under the ADA, even if in remission or when not suffering from an episode. Examples include multiple sclerosis, epilepsy or cancer.

Summary

In summary, under the amendment more employees will fit within the definition of disabled, either by a mental of physical impairment and in turn more employers will be required to make reasonable accommodations.  Steps employers should consider to minimize complaints and legal action include

• Revising policies related to the ADA

• Establishing procedures for responding to requests for reasonable accommodations

• Revising medical certification forms

• Ensuring job descriptions spell out essential job functions

• Training supervisors and managers on the new law

• Consider including disability within diversity training, for all employees.

 Sources
[1] http://www.eeoc.gov/types/ada.html
[2] http://www.sgrlaw.com/resources/client_alerts/1209/
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