The ADA Amendments: Significant Changes for Employers on the Way
It's an election year and everybody is talking about "change". Obama's theme is "Change we can believe in" while McCain says that "Change is coming". I don't know who will win or who offers the most change, but no matter what, our nation's employers must now plan for wide-sweeping changes regarding the Americans with Disabilities Act (ADA).
Congress recently passed the ADA Amendments Act, which President Bush is anticipated to sign and will go into effect on Jan. 1, 2009. Not only will it have a tremendous impact on the defense of employment litigation claims, but they will require almost all business owners, human resource professionals and supervisors to adopt new policies and procedures in dealing with accommodation requests. While courts have previously rejected the majority of ADA cases, employers will now need to act much more cautiously.
The following lists the major areas of change in the new Act. Although the ADA only applies to those workplaces with 15 or more employees, this requirement is not as limiting as it first appears. The number includes part-time and temporary employees, and applies if an employer had 15 or more employees for at least 20 weeks during the current or preceding calendar year.
- Broad Standard for "Disability" Definition - the new law 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.
- "Majority Life Activity" is now just about everything - the ADA was silent on what constituted a major life activity, or in other words, the areas of life that needed to be adversely affected in order for someone to claim a disability. But the new ADA includes a thorough and exhaustive list of activities, including caring for oneself, performing manual tasks, eating, sleeping, reading, concentrating, thinking, communicating and working. 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.
- Mitigating Factors Must Now 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.
- Ordinary Eyeglasses and Contact Lenses - Despite the provision regarding mitigating factors there is an exception for ordinary eyeglasses and contact lenses. An employer can consider eyeglasses and contact lenses when determining if someone is disabled.
- The "Regarded As" provision is also read more broadly - the ADA has always offered protection for those employees whom an employer wrongly "regarded" as being disabled. Previously, ADA plaintiffs needed to prove that the employer regarded them as being substantially limited in a major life activity, which was often 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.
- EEOC is now permitted to regulate the ADA - the new ADA also provides an express mandate to the Equal Employment Opportunity Commissions (EEOC) to issue binding regulations and other interpretative guidance regarding the statute.
Overall, the changes to the ADA are extensive and include several other issues not discussed in this blog post. You are encouraged to consult your employment attorney regarding the ADA amendments and their impact on your business. For further reading I also suggest you review the following employment law blog sites for handy information on the new amendments: