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RAWLE'S REPORT
04/15/09
Contact
Madeline S. Baio
(484) 444-0300
A Publication of Rawle & Henderson LLP
On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 (“ADAAA”), 110 P.L. 325; 122 Stat. 3553; 2008 Enacted S. 3406; 110 Enacted S. 3406. That law, which went into effect on January 1, 2009, broadens the definition of disability and expands the population eligible for protections under the Americans with Disabilities Act of 1990, 42 U.S.C.S. § 12101, et seq. (“ADA”). The impact which the ADAAA will have upon the obligations of employers to comply with the ever increasing requirements of both federal and state laws is likely to be significant. Moreover, most commentators and authorities in the field of employment law agree that the ADAAA will result in an increase in litigation as all those affected by the changes test the boundaries of the newly defined law.
By way of brief overview, the Americans with Disabilities Act generally prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against otherwise qualified individuals with disabilities in job applications, hiring, firing, promotion, compensation, training and other aspects of employment. The ADA covers employers with 15 or more employees and requires that reasonable accommodations be made for known disabilities of qualified applicants or employees if such would not impose an “undue hardship” on the employer’s business. Employers are generally required to engage in an interactive process to determine whether a reasonable accommodation is needed and, if so, what kind of accommodation is actually possible.
In enacting the ADAAA, Congress emphasized that since the enactment of the ADA in 1990, the broad protections which were intended by the Act have been eroded. In this regard, the Congressional Statement of Findings and Purpose set forth in the ADAAA is critical of two particular United States Supreme Court decisions which effectively eliminated the protections afforded by the ADA to a class of persons whom Congress intended to protect. Sutton v. United Airlines, Inc, 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). In addition, Congress is also critical of the Equal Employment Opportunity Commission (“EEOC”), finding that the agency’s regulations defining the scope of the ADA were too restrictive and inconsistent with congressional intent.
So what changes have been made by the enactment of the ADAAA? There are four basic changes:
First, the ADAAA expands the definition of the “major life activities” which are to be considered in determining whether an individual’s impairment is a disability covered by the ADA. “Major life activities” are now defined by two non-exhaustive lists which clearly indicate that, going forward, this term will be broadly construed. The first list includes many activities that the EEOC has always recognized as “major life activities” but adds a number of activities to this list which now includes: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The second list further defines a “major life activity” to include operations of a “major bodily function” which is defined as including: “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”
Second, the ADAAA redefines “disability”. While retaining the three part definition (see footnote 1), the ADAAA makes some significant changes to ensure that “disability” is construed broadly. Those changes include the expansion of the definition to include an impairment that is episodic or in remission if it would substantially limit a major life activity when active. Theoretically, at least, this definition embraces a wide range of impairments from cancer to migraine headaches and may very well be the source of much litigation going forward. In addition, the phrase “substantially limits” will no longer be defined as “significantly restricted” or “severely restricted” but will instead be given broader meaning.
Third, the ADAAA amends prior law by providing that the ameliorative effects of mitigating measures, other than ordinary eyeglasses or contact lenses, cannot be considered in assessing whether an individual has a disability. Consequently, no longer can an employer take into consideration such things as medication, equipment, prosthetics, and the like in determining whether an employee or prospective employee is disabled. Thus, theoretically, at least, a diabetic whose condition is fully controlled by medication or insulin, will nevertheless now be considered to be disabled.
Fourth, the ADAAA amends the meaning of the phrase “regarded as disabled” by permitting an employee to establish that he or she has been discriminated against in violation of the ADA because of an actual or perceived impairment, regardless of whether the impairment limits, or is perceived to limit, a major life activity. The ADAAA does, however, provide that the “regarded as disabled” definition of disability does not include transitory or minor impairments which are expected to last six months or less.
What do you need to do to ensure compliance with the ADAAA? These changes, both singularly and in combination, clearly extend the protections of the ADA to a class of individuals not previously afforded coverage. In order to ensure that your business or organization is in compliance, it is generally advisable to review and update as needed all handbooks and company policies and procedures dealing with discrimination generally, disability discrimination in particular, and the procedures for the interactive process and reasonable accommodations that you currently have in place. Be sure to check the written policies and procedures that may be posted at your workplace or distributed to employees in written pamphlet or booklet form as well as policies and procedures that you may have posted on a company website or intranet. Attention should also be paid to the need to train supervisors, human resource personnel and administrative staff concerning the amendments to the ADA so that they are aware of the changes and the broadened scope of coverage. If there are any uncertainties or questions concerning the ADAAA or the impact which potential disability issues may have on your operations, be sure to consult with counsel.
For a complete copy of the Rawle's Report please click the link below:
Rawle’s Report EMPLOYMENT LAW -AMERICANS WITH DISABILITIES ACT
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