Employers and changes in the disability act

On Sept. 25, President Bush signed into law the ADA Amendments Act of 2008. The act, which is effective Jan. 1, 2009, broadens the scope of protection provided to individuals under the Americans with Disabilities Act of 1990. The ADA prohibits employers from discriminating against disabled employees and requires employers to provide reasonable accommodation for individuals with disabilities, unless the accommodation would cause undue hardship on the operation of the employer's business.

Under the ADA, a person is disabled if that person suffers from an impairment that "substantially limits one or more major life activities," has a record of such an impairment, or is regarded as having such an impairment. While Congress has retained the ADA's basic definition of "disability," it has rejected a series of seminal Supreme Court decisions which narrowly construed that definition and has added other provisions which will provide guidance in determining whether or not an individual's impairment is considered a disability. By doing so, Congress has shifted the focus in ADA cases from whether or not a particular person qualifies as disabled to whether or not employers complied with their ADA obligations.

In Sutton v. United Air Lines, the Supreme Court held that an employer should consider the effect of "mitigating measures," such as medication or medical devices, when determining whether an impairment substantially limits a major life activity. For example, an employee with high blood pressure that was controlled through the use of medication would not have qualified as disabled when applying that standard.

Congress has rejected the application of that standard and the act specifically provides that courts should not consider "the ameliorative effects of mitigating measures" including medication, prostheses, or other aids when determining whether an individual has a disability. A narrow exception allows courts to consider "ordinary eyeglasses or contact lenses" in determining whether a vision impairment is sufficient to trigger

ADA protection. Consequently, many employees who successfully manage their disability, and who would have been denied protection prior to the adoption of the act, will now be covered under the ADA.

Congress has also rejected the Supreme Court's ruling in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams and the U.S. Equal Employment Opportunity Commission regulations which define the term "substantially limits" as "significantly restricted." In Toyota Motor, the court held that a woman who was not able to work on an assembly line due to carpal tunnel syndrome was not disabled because she could still brush her teeth, bathe herself, and perform other household chores. The court's ruling was based upon its strict interpretation of the terms "substantially limited" and "major life activity" and its determination that an impairment must prevent or significantly restrict a person from "doing activities that are of central importance to most people's lives."

By rejecting the court's ruling in Toyota Motor and the EEOC regulations, Congress has expressed its belief that such standards are too high and are inconsistent with congressional intent. Unfortunately, the act itself does not define the term "substantially limits." Instead, the act directs courts to construe this requirement "in favor of broad coverage under the act" and directs the EEOC to issue new regulations clarifying what it means to be "substantially limited" in a major life activity, so as to comport with the act. As such, uncertainty is likely to exist with respect to the meaning of the term "substantially limits" until it is defined by the EEOC and interpreted by the courts.

The act also broadens the ADA's protection by adding that impairments that are in remission are disabilities if those impairments substantially limit a major life activity when active and an impairment limiting one major life activity need not limit any others to qualify as a disability under the ADA. The act further specifies that "major life activities" include, but are not limited to, "performing manual tasks, seeing, hearing, eating, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Congress also added "major bodily functions," such as digestive, immune system, and brain functions, to a non-exhaustive list of "major life activities," which potentially opens the door for those suffering from cancer, liver disease, multiple sclerosis and diabetes.

Finally, while an employee can qualify as disabled under the ADA if they are merely regarded as being disabled, the act eliminates any requirement that the perceived impairment limit a major life activity.

Therefore, an employer will be liable under the ADA if it discriminates against an employee because of a perceived impairment and courts will not consider whether the perceived impairment has any effect on a major life activity. It should be noted, however, that an employer still has no obligation to make accommodations for perceived impairments.

The overall impact of these amendments is that many employees who were not previously protected under the ADA may now be considered to have a disability and employers should be mindful of the new and broadened scope of the ADA's coverage. As the effective date of this new legislation rapidly approaches, there are certain steps that all employers should take to ensure continued compliance.

First, employers should make sure their policies reflect the new standards implemented by the legislation. Employers should expect to receive a greater number of requests for accommodations and should review their procedures to ensure that they applying the broader definition of disability when determining whether to offer an accommodation. Accommodations will likely have to be made for some employees that were not required under the old scheme. Second, human resources managers should be educated and trained as to the new standards. Many employees who may not have qualified under the old standards will likely be protected in the future. Finally, in close cases, employers should seek legal counsel to review how the act's expansion may impact the determination of disability warranting the offering of a reasonable accommodation. The purpose of this legislation is to broaden coverage and, as a result, more lawsuits are to be expected. Because most cases will now turn on the actions of employers, rather than the condition of the employee, it is extremely important for employers to ensure that they have complied with their obligations under the ADA.

Jacquelyn Leleu is a partner at McDonald Carano Wilson LLP and practices primarily in the areas of employment law, construction law and commercial litigation.

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