As noted in our last newsletter, in perhaps the most sweeping change to employment law in years, the recent passage of the "ADA Amendments Act" (ADAAA) will mean a massive change for most of the country's employers*.  The Law firm of Fisher & Phillips LLP has recently published the following excellent overview on their website.  These changes, which will go into effect on January 1, 2009, include:

1. The ADAAA instructs courts (and employers) to adopt a broad standard when determining whether an individual is considered disabled.  The language states that it provides "a broad scope of protection" for employees, and provides that courts examining ADA cases need to provide coverage for plaintiffs "to the maximum extent permitted" by the statute.

Application: This is a complete change from more than a decade of conservative federal court opinions.  Employers can expect to see more ADA claims survive motions to dismiss and motions for summary judgment, and it should follow that more ADA cases will proceed to trial.  Employers who are faced with making employment decisions involving individuals who might have a disability should recognize that the employee is now more likely to be protected under the Act.  You should tailor employment decisions with that in mind.

2. Mitigating Measures Are To Be Ignored
When making a decision about whether an employee is considered sufficiently disabled to receive protection under the ADA, employers and courts must now ignore any and all mitigating measures being used by the individual in question.  This includes medications, prosthetics, hearing aids, mobility devices, and learned adaptations.  This is a guessing game for the employer and the court, as they will be forced to make speculative assumptions about "what may be" instead of "what is."

Application: When engaging in the interactive process and communicating with employees and their health care providers, you will need to specify that the examination being conducted should be without regard to mitigating measures. Interactive process questionnaires will need to be adapted to structure questions accordingly.

In a minor victory for employers, the Act specifically holds that employers and courts can consider the effect of "ordinary eyeglasses or contact lenses" when examining an individual under the new ADA, excluding this one condition from the new mitigating measures analysis.  If this provision had not been included, virtually everyone in your workplace could have been considered disabled under the new ADA.

3. What is a "Major Life Activity"

Since its inception, the ADA was silent on what constituted a "major life activity" – that is, the areas of life that needed to be adversely affected in order for someone to claim a disability.  Although the EEOC proposed a list of recommended activities, many courts have rejected the agency's broad interpretation, and even the U.S. Supreme Court has expressed skepticism about the list.

But the new ADA includes a list of activities considered to be "major life activities," including caring for oneself, performing manual tasks, eating, sleeping, reading, concentrating, thinking, communicating and working.  Moreover, it also expressly states that the operation of any major bodily function is considered a major life activity – including functions of the immune system, cell growth, digestive functions, reproductive functions, and neurological and brain functions.

Application: The broad definition of disability together with the new list of major life activities will ensure that almost every employee who wants to file an ADA claim will be able to do so.  Even those conditions that might not be readily apparent could be considered disabilities, such as those that have an impact on the body's internal functions.

4. "Regarded As Being Disabled"

The ADA has always offered protection for those employees whom an employer wrongly "regarded" as being disabled.  Under previous federal court interpretation, ADA plaintiffs needed to prove that the employer regarded them as being substantially limited in a major life activity, which was a difficult standard to meet.  Under the new ADA, a "regarded as" plaintiff need only demonstrate that the employer perceived the individual as having a mental or physical impairment.
 

Application: If the door to the courtroom had not been opened up far enough with the other amendments, this amendment will ensure it is thrown as wide open as possible.  Even if an employee has an impairment that somehow is not held to substantially limit a major life activity, it seems likely that courts will grant an expansive definition and make it fairly easy for an employee to prove that the employer regarded the employee as having an impairment.

The new ADA states that the "regarded as" prong will not be applicable when an impairment is "transitory" (defined as lasting 6 months or less) and "minor."  Employers can take small comfort in the amendment which clarifies that "regarded as" disabled employees are not entitled to reasonable accommodations under the ADA.

5. EEOC to Regulate ADA and Define "Substantial Limitation"

The ADAAA also provides an express mandate to the Equal Employment Opportunity Commissions (EEOC) to issue binding regulations and other interpretative guidance.  This is significant because the U.S. Supreme Court had called into question the EEOC's authority to do so under a technical reading of the old ADA.  The ADAAA specifically requests that the EEOC provide a regulatory definition for the term "substantially limits" that lowers the standard to a level consistent with congressional intent.

Application: 2009 will most likely see the introduction and passage of new EEOC regulations expanding on this definition and the rest of the revised statute, almost certainly with a pro-employee and expansive bent. It will be interesting to see how broadly the regulatory agency classifies the "significantly restricted" definition and how much of the previous definition (involving an analysis of the condition, manner and duration of the restriction) will be retained.

6. Miscellaneous Amendments

Some other amendments included in the new ADA:

a)     Impairments that are "episodic or in remission" can still be considered to be disabling if, "when active," they substantially limit a major life activity.  In other words, employers again need to play a guessing game and determine whether episodic or intermittent impairments could rise to the level of disability, and treat employees accordingly.

 

b)     The statute will attempt to conform to Title VII and other anti-discrimination statutes by changing some technical language of the Act to more clearly demonstrate that a plaintiff can prevail in a claim by showing discrimination "because of" the protected disability.

 

c)      Finally, the new ADA prohibits "reverse discrimination" claims, i.e., employees without disabilities cannot sue under the ADA by claiming that an employer impermissibly rejected them in favor of other individuals with disabilities.

Summary

When it comes to ADA litigation, employers should now have the same expectation for ADA claims as they do for other discrimination claims (gender, race, religion, age, etc.).  It is no longer difficult to prove that you have a right to bring such a claim.  Although employers still have the same ability to defend a discrimination claim by showing that a legitimate and non-discriminatory reason existed to justify an employment action, such as termination or demotion, they can no longer count on being able to defeat such a claim before getting to that point.

When it comes to day-to-day human resource management, you need to be prepared to immediately adapt your interactive process policies and to offer accommodations to a wider percentage of your workforce.  Employers will be well-served to err on the side of caution when determining whether to engage in the interactive process with an employee, and will need to more cautiously react to requests for accommodation.