Staying in Step with Step 1 Management

Federal Facts VI:

New ADAAA Means Employers Must Pay Closer Attention to Disability Accommodation Requests

by Kim Kisner

On September 25, 2008, President George W. Bush signed into law the Americans with Disabilities Act Amendments of 2008, which liberalizes the definition of "disability" and means that a dramatically larger population will be considered "disabled" and protected by the ADA's prohibitions on discrimination and its reasonable accommodation requirements. The ADAAA amendments will become effective January 1, 2009.

The original American with Disabilities Act of 1990 was mostly silent on the meaning of critical terms, such as "substantially limits" and "major life activities." For more than a decade, many disability rights advocates and some members of Congress complained about the Supreme Court's narrow interpretation of the language contained in the original statute, claiming that the Court had unduly restricted the types of impairments covered by the law. The bill signed by President Bush was a compromise reached by employer and business groups, including the U.S. Chamber of Commerce and the Society for Human Resources Management, and the disability rights community.

Although the ADAAA is a result of compromise, it is much less employer-friendly than the original ADA. Most significantly, the ADAAA repudiates the 1999 decision of the U.S. Supreme Court in Sutton v. United Airlines (finding that mitigating measures had to be considered in determining whether an individual is substantially limited in a major life activity) and its 2002 decision in Toyota Mfg. Co. of Ky., Inc. v. Williams (taking a restrictive view of what constitutes a substantial limitation in the major life activity of working).

The ADAAA makes clear that it intends to provide "a broad scope of protection" to individuals with disabilities. Toward this end, the new statute:

Greatly expands the definition of "major life activities" to include a laundry list of activities ("caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working"), as well as "major bodily functions" (including, but not limited to, "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions").

Under this definition, a whole host of impairments previously excluded from ADA coverage, and which may not have a direct relationship to the activity of working, could now fall within its purview, such as insomnia (impaired in the major life activity of sleeping), dyslexia (learning), stuttering (speaking), and attention deficit disorder (concentrating), as long as the impairment is "substantially" limiting.

Requires courts to interpret liberally the term "substantially limits" ("to the maximum extent permitted" by the act). To help ensure an expansive construction of "substantially limits," the ADAAA, with only one significant exception, now prohibits an employer from considering the ameliorative effects of mitigating measures, such as medication, on an individual's impairment. Thus, for example, in determining whether an applicant or employee with a heart condition or diabetes is "disabled" within the meaning of the statute and therefore entitled to a reasonable accommodation, an employer may no longer consider if, or to what extent, medication diminishes or controls the impairment.

Other mitigating measures that may not be considered include prosthetics, hearing aids and assistive technology. Hence, an individual who would be deemed disabled under the statute absent any of these mitigating measures now is covered.

The ADAAA, however, does contain one important exception to the elimination of mitigating measures as a consideration and that is for "ordinary eye glasses or contact lenses to correct poor vision."

Broadens the definition of "disability" to include impairments that are episodic or in remission if they would substantially limit a major life activity when the individual is active.

Makes clear that under the "regarded as" prong, an employer need only perceive that the individual has a physical or mental impairment (overriding court decisions requiring a plaintiff to show that the employer regarded him or her as being substantially limited in a major life activity).

The new law, however, also restricts the coverage of individuals who are "regarded as" disabled by making that term inapplicable to individuals with a "minor" and "transitory" condition (e.g., a condition that lasts, or is expected to last, six months or less). Further, individuals "regarded as" disabled are not entitled to accommodations.

The ADAAA will make it much harder for employers to take the position that any given individual is not "disabled" within the meaning of the Act. This means more reasonable accommodation requests and decisions, as well as more discrimination charges and lawsuits. Employers should ensure that their human resource departments are up to date on their legal obligations and handle accommodation requests appropriately. Some employers have not offered ADA training in years because of the relatively restrictive view that courts took of the ADA after the Sutton decision. Employers who fall into this category would be well-advised to offer comprehensive training on the requirements of the ADA and, in particular, how to effectively handle requests for reasonable accommodation.

Kim Kisner is founder and principal of Kisner Law Firm. She has been a litigator and counselor in the area of employment law for more than a decade. Kisner Law Firm helps employers minimize risks while growing their businesses, by preventing workplace disputes from escalating into costly litigation.

You can contact Kim at kim@kisnerlawfirm.com or at 412-242-7787