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New law brings major changes to ADA; meaning of disability expands
09-26-2008 |
New law brings major changes to ADA; meaning of disability expands
Major change is on the way for the Americans with Disabilities Act (ADA) after President Bush signed the ADA Amendments Act of 2008 into law on September 25. The new provisions, which take effect January 1, 2009, will have a major impact on how employers interpret and apply the ADA.
We expect that the Equal Employment Opportunity Commission (EEOC) will issue regulations to implement the amendments, but for the time being, the text of the act (S 3406, PL 110-___, Sept. 25, 2008) is the only guidance available for employers to comply with the new law.
If you have questions about how the new law affects your business, be sure to contact your TOC staff representative. Here is TOC’s initial analysis and overview of the amendments:
Definition of disability
Although the ADA amendments do not change the actual definition of disability, several provisions (discussed below) broaden how the term is interpreted. A disability is a physical or mental impairment that substantially limits a major life activity, or a record of such an impairment, or being regarded as having such an impairment. Congress specifically stated that the term “disability” should be broadly interpreted in favor of wide-ranging coverage for individuals. For employers, this will likely mean that many individuals who do not qualify as disabled under the current ADA will qualify as disabled under the amendments. Keep in mind that you still need to check state law as well. California and Washington have their own broad definitions of disability, which may still vary from the ADA Amendments Act.
Expanded category of major life activities
The ADA amendments greatly expand the category of major life activities, which now include, but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The category of major life activities also includes the operation of major bodily functions, including but not limited to: functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
It remains to be seen how broadly this will be applied. For example, now that “bending” will be a major life activity, is this limited to bending at the torso, or does it mean that someone who has difficulty bending his neck or his pinky finger has a disability?
Impairments that are episodic or in remission may be disabilities
The ADA amendments specifically state that an episodic impairment or one that is in remission is a disability if it would substantially limit a major life activity when active. For example, for everyone who beats cancer, it is conceivable that the ADA Amendments Act might consider them to have a disability, on the theory that the cancer is in remission. For some conditions, it may be difficult to predict whether the active impairment would substantially limit a major life activity. The good news, however, is that most employees who have an impairment that is episodic or in remission won’t need an accommodation in between episodes. But employers should be careful not to discriminate against an employee with this type of impairment.
Employers can no longer consider mitigating measures
Perhaps the most significant impact of the ADA amendments is that an individual’s disability must be examined without regard to mitigating measures, such as medication, medical supplies, equipment, appliances, prosthetics, hearing aids, mobility devices or learned adaptations. For example, if your employee has significant hearing loss and wears a hearing aid to correct the problem, the employee has a disability regardless of the effectiveness of the hearing aid. Both California and Washington state laws take a similar approach, ignoring the effects of any mitigating measures to determine whether someone has a disability.
Under the ADA Amendments Act, employers can, however, consider the mitigating measures of ordinary eyeglasses or contact lenses. So, if your employee wears normal corrective eyeglasses or contact lenses, you can consider the effect of those eyeglasses or contacts when examining whether he or she is disabled.
Expanded category of “regarded as” having a disability
The ADA amendments also expand discrimination protection for individuals who are regarded as being disabled. An individual is regarded as disabled if he or she has been subjected to discrimination (or another act prohibited under the ADA) simply because of an actual or perceived physical or mental impairment. This differs from the current ADA because it no longer matters whether the perceived impairment limits or is perceived to limit a major life activity. For example, if an employer rejects a candidate for a receptionist position because the candidate has severe acne (an impairment, but not a substantially limiting one), the employer may have violated the “regarded as” provision of the new ADA.
In one piece of good news for employers, employees cannot establish that they have been regarded as disabled if their impairment is transitory and minor, meaning its duration or expected duration is six months or less. So an employee who breaks her wrist and wears a cast for six weeks cannot claim she has been regarded as disabled.
Employers are not required to provide an accommodation to an employee who is regarded as disabled, unless of course that person actually qualifies as an individual with a disability.
TOC Tips:
Employees will have much greater success establishing that they have a disability, so employers should plan on spending more time on the interactive accommodation process. You have a few months before the new law takes effect, but you should start evaluating your ADA procedures now. Be sure you have solid policies and procedures for disabled employees to request reasonable accommodations and for you to evaluate them.
In addition, employees will most likely have greater success establishing that they have been discriminated against because of a perceived disability. Employers should be extremely cautious about taking any employment action based on an individual’s actual or perceived physical or mental impairment. Always call your TOC staff representative when a specific situation arises.
It’s difficult to predict how these new provisions will operate when applied to a particular situation, and they will certainly be the subject of ongoing litigation. TOC will be scheduling a webinar to cover the provisions of the new law. Also, in the coming months, we will update our Fact Sheets, Model Forms and Model Policies to comply with the ADA Amendments Act. In the meantime, please feel free to contact your TOC staff representative if you have any questions regarding this new law.
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This TOC Alert is a publication of TOC Management Services, 6825 S.W. Sandburg St., Tigard, OR 97223, telephone 503-620-1710. © 2008 TOC Management Services. This publication presents general information in nontechnical language. Before applying this information to specific management decisions, consult legal counsel, or consult TOC staff in the following offices:
Everett, WA—425-349-4477
Spokane, WA—509-276-3022
Tigard, OR—503-620-1710
Eugene, OR—541-485-7296
Redding, CA—530-222-3500
Writing: Diane Weisheit, Karen Davis; Editing: Luana Hill
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