The Americans with Disabilities Amendments Act of 2008: A Year in Review
Employers across the country have been living with the Americans With Disabilities Amendments Act of 2008 (ADAAA) for over one year now. In fact, January 1, 2010, marked the one-year anniversary of the effective date of the ADAAA.
The ADAAA, which altered the very definition of what it means to be disabled under the ADA, has been a source of confusion and frustration for employers. Undoubtedly, the ADAAA will result in more individuals being covered by the ADA. In passing the ADAAA, Congress expressed its general discontent with how the ADA had been applied since 1990 and stated that the new definition of disability “shall be construed in favor of broad coverage... to the maximum extent permitted by the terms of the ADA.” As a result, employers can expect an increase in requests for accommodations due to alleged disabilities and, unfortunately, lawsuits.
So, are employers entirely defenseless to a new wave of ADA claims? Not necessarily. Employers have voiced pessimism over the recent changes; however, some may have forgotten that the ADA has always contained provisions designed to protect employers, even if an individual is disabled under the Act. This article explains some of the important ways that the ADAAA changed disability law and gives a brief overview of defenses that remain available to employers.
So far, the circuit courts have agreed that the ADAAA does not apply to claims of discrimination that accrued before the effective date of the ADAAA. In other words, the ADAAA does not apply retroactively and cannot be relied upon by plaintiffs for claims arising after January 1, 2009.
The ADAAA makes it easier for employees to establish that they have a disability under the Act. Some major changes to the ADA include the following:
1. Individuals no longer need to be severely restricted in order to be “substantially limited” – Before the ADAAA, the U.S. Supreme Court set a high standard when it announced that an individual had to be “severely restricted” from performing major life activities to qualify as disabled. The ADAAA lowers this standard and requires individuals to show that they are merely limited in performing activities when compared to most people in the general population. This comparison can be made using a “common-sense standard, without resorting to scientific or medical evidence.”
2. Mitigating measures are no longer considered – Mitigating factors, such as the use of medication or assistive devices, can no longer be considered when determining whether an individual is disabled. The only exception to this new rule is the use of ordinary eyeglasses and contact lenses.
3. An impairment that is episodic or in remission is still a disability if it would impair an individual when active – The ADAAA covers an individual with an impairment that would normally limit a major life activity if it were active – even if it is currently inactive or in remission.
In addition, the EEOC has provided a proposed list of impairments that, in its view, would consistently meet the definition of disability, including the following: blindness, deafness, intellectual disabilities, missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia.
The short answer to this question is: all of them. The ADAAA has radically changed how the term “disability” is to be construed and interpreted, but the remainder of the Act has been left virtually untouched. Thus, employers may avail themselves of the same protections afforded under the ADA as they have in the past – the difference now being that employers may need to invoke the following defenses much more frequently:
1. An employee must still be able to perform the essential functions of the job – An employee with a qualifying disability must be able to perform the essential functions of the job, with or without a reasonable accommodation. Otherwise, the ADA generally does not limit an employer’s ability to discharge or otherwise discipline an employee. The ADA still provides that “consideration shall be given to the employer’s judgment as to what functions of a job are essential.” So, be sure to review your company’s written job descriptions and make sure that these are current and an accurate reflection of the employee’s day-to-day responsibilities. You may need to use these job descriptions in your defense of claims of discrimination or failure to accommodate under the ADA. It’s also a good practice to print the job expectations in a formal document (like a performance review or annual goals) and have employees acknowledge their receipt by signature.
2. Reasonable accommodations are not required if they create an undue hardship for the employer – In general, employers must reasonably accommodate employees with disabilities. This could include making existing facilities more accessible, job restructuring, acquisition of equipment or devices and interpreters, to name only a few. However, if accommodating an employee’s disability creates an “undue hardship” – meaning that it requires significant difficulty or expense – an employer does not have to provide the accommodation.
4. Employers may design qualification standards to ensure that applicants and employees do not pose a “direct threat” to the health or safety of other employees – Employers may still design qualification standards to determine if an applicant or existing employee poses a “direct threat” to its workforce. A direct threat is a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. If an applicant or employee poses a direct threat, the employer may refuse to hire that applicant or may terminate an existing employee without violating the ADA.
The law is still unfolding under the ADAAA and employers will continue to face challenges and additional changes under the ADAAA moving forward. For instance, the EEOC is currently reviewing public comments on its proposed regulations to the ADAAA. The final regulations are not expected until later this year. One thing is certain – the ADAAA has changed how employers handle requests for accommodation and disability claims in general. More individuals have been and will continue to be covered by the Act and, as a result, employers will be expected to engage in a heightened interactive process with their employees, as Congress had originally intended especially with respect to requests for accommodations. Notwithstanding the recent concerns, employers may still avail themselves of the defenses set forth above.