Amendments to the Americans with Disabilities Act will expand disability protection to additional workers
Wednesday, December 17, 2008
Amendments to the Americans with Disabilities Act will expand disability protection to additional workers
On January 1, 2009, amendments to the Americans with Disabilities Act (ADA) will become effective and will significantly impact the manner in which employers deal with disabled (or arguably disabled) employees. The amended ADA expands the scope of who is “disabled” by: (1) adopting a definition of “major life activities” broader than the interpretation courts had given that phrase; (2) expanding the scope of protection under the “regarded as” clause; and, (3) changing the definition of “substantially limits.”
Major Life Activities.
The amended ADA provides a list of “major life activities” that if impaired will provide ADA protection for an employee. This list includes once-disputed items such as lifting, bending, concentrating and working, as well as “major bodily functions,” such as digestive, bowel, bladder, endocrine, and reproductive functions. These lists are not exhaustive – only illustrative. This does not mean every impairment affecting these functions qualifies as a disability, and an impairment must still “substantially limit” a major life activity to qualify. However, Congress is clearly conveying its intent that this phrase be interpreted more liberally.
Regarded As.
The amended ADA significantly expands coverage of employees under the “regarded as” clause. Specifically, an employee may be able to state a claim of disability discrimination simply by proving the existence of impairment, with no requirement that the impairment be substantially limiting in any way. However, the impairment cannot be “transitory” (meaning lasting less than 6 months) or “minor” (not specifically defined, but referred to as “trivial”).
Substantially Limits.
The amended ADA also instructs courts interpret the phrase “substantially limits” consistent with the findings and purposes of the amended ADA. In that regard, the amended ADA rejects Supreme Court precedent which held that phrase should be interpreted strictly to create a demanding standard for qualifying as disabled. Those cases required an impairment to be “severe,” or “significantly restrict” to satisfy the statute. Without explaining what the standard should be, the amended ADA rejects these formulations and instructs courts to set the bar lower.
Other Changes.
Other changes include: (i) employers may no longer take “mitigating measures” (such as medication, hearing aids and other assistive technology) into consideration when determining whether an employee is “disabled”; (ii) non-disabled employees cannot claim “reverse disability discrimination”; and (iii) these changes apply to definition of disability used in the Rehabilitation Act (a sister statute to the ADA, applicable to federal employment, programs receiving federal financial assistance and in the employment practices of federal contractors).
While the changes enacted in the amended ADA undoubtedly expand the scope of individuals covered by the ADA, they do not limit employers’ ability to raise defenses, including defenses as to whether a requested accommodation is reasonable. Because of the expanded scope of coverage, however, the amended ADA may result in the defense of ADA cases becoming more difficult and expensive. We recommend that all employers covered under the ADA seek assistance in reviewing and revising their current policies in advance of the law’s implementation to ensure all policies conform to the revised Act.
If you have questions about these or other legal issues relating to your employees, please contact Pat Maher at (817) 877-8167 or Pat Richter at (512) 610-2714.
