ADAAA – Compliance Update for 2009

On January 1, 2009 the ADAAA takes effect and covers many more Americans than were previously covered under the Americans with Disabilities Act (ADA). Employers with 15 or more employees (including part-time and temporary employees) for at least 20 weeks during the current or preceding calendar year should take notice of these amendments.

What has changed?

1. Expanded Definition of Disability. While the ADAA does not alter the statutory definition of disability, it rejects the Supreme Court’s interpretation of “substantially limits”. Essentially, the ADAAA expands the protections provided by the ADA by explicitly overturning Supreme Court cases (Sutton v. United Air Lines and Toyota Motor Manufacturing, Kentucky v. Williams) that have narrowly construed who has “disability” under the ADA. Under these cases physical and mental impairments are not considered a disability under ADA if the impairment is controlled by either medication or assistive devices, or do not prevent or significantly restrict an individual from performing a major life activity (walking, talking, hearing, working, etc). EEOC is charged with revising the definition of “substantially limits”.
2. Changes to Mitigating Measures. Employers no longer may take into account mitigating measures (such as hearing aids, medications, prosthetics, mobility devices) when determining if someone has a disability; with the exception of eyeglasses and contact lenses.
3. Broadening Definition of Major Life Activity. The definition of “major life activities” has been expanded to include caring for oneself; performing manual tasks; seeing, speaking, breathing, hearing, eating, sleeping, walking, standing, lifting, bending, learning, reading, concentrating, thinking, communicating, working and the operation of a major bodily function, such as immune system, normal cell growth and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
4. The “Regarded As” Prong is broadly interpreted. The “substantially limits” requirement has been removed from the “regarded as” prong. Someone with an impairment can be regarded as having a disability, even without the perception that the impairment limits a major life activity, assuming that the impairment is of actual or expected duration of six months or more. “Regarded as” disabled employees are not entitled to reasonable accommodations.
5. Other amendments to ADAAA – Impairments that are “episodic or in remission” can be still considered to be disabling if, “when active,” they substantially limit a major life activity. ADAAA prohibits “reverse discrimination” claims whereby employees without disabilities cannot sue by claiming that an employer rejected them in favor of other individuals with disabilities.

What has not changed?

1. Employers are still required to provide only reasonable accommodations to individuals who, with or without accommodations, are qualified to perform the essential functions of the position. Accommodation is not required if it results in an undue hardship for the employer.
2. ADA still prohibits medical inquiries and examinations, except if an employee requests a reasonable accommodation and the employee’s disability is not obvious.
3. All medical information is confidential and must be maintained in files that are separate from the personnel file.

Bottom Line – What does this mean to Employers?

The ADAAA will expand the number of individuals who will be considered “disabled”. Employers will have to defend themselves forcefully from ADA claims by showing they have processes to make individual assessments of employees’ qualifications with or without accommodations. Because of the expanded coverage, it is likely that there will be more ADA claims filed.

Action Items:

1. It may be a good idea to communicate to managers of their duty to accommodate employees and applicants with disabilities. It is important not to use preconceived judgments about what people with disabilities can and cannot do, instead evaluate all situations on a case-to-case basis. Inform them that the ADA has been amended to provide a much broader definition of who is covered and that it is important to inform HR to all reasonable accommodation requests.
2. When communicating with employees and their health care providers, specify that the examination conducted should be without regard to mitigating measures. It may be a good idea to develop interactive process questionnaires for the medical professional to ensure receipt of consistent information.
3. Evaluate policies to ensure that they comply, particularly in the application and interactive processes.
4. Review existing job descriptions to make sure that they accurately describe the essential functions of the position.
5. Develop forms, letters, and processes to handle accommodation requests.