MANAGEMENT MOXIE Nimble News

THE ADA GETS A MAKEOVER BUT IT ISN'T PRETTY

The good news is many questions about the ADA (Americans with Disabilities Act) have been answered. The bad news is the clarifications, which went into effect January 1, 2009, raise the bar for employer compliance.

WHAT HAS CHANGED?
  1. DISABIITY: The basic definition remains the same but the way the statutory terms like "major life activities" are interpreted (see below) has changed. Moreover, the act emphasizes that "disability" should be interpreted broadly, which the courts will do.

  2. MAJOR LIFE ACTIVITIES: Before the changes the ADA was silent in defining a "major life activity" (which is the area of life that must be adversely affected for a person to be disabled). Courts had carved out some definitions but the new act is more expansive and "non-exhaustive". The list of "major life activities" includes just about everything: reading, sleeping, eating, thinking and communicating to name a few. The definition further includes bodily functions such as digestion, reproduction, cell growth, circulation, and the operations of the nervous system and brain. Sleep disorders, eating disorders, fertility-related disorders, learning impairments and ADD may now be considered disabilities. This list will enable almost any employee to establish the "major life activity" component to claim a disability.

  3. MITIGATION: There are no longer mitigating factors when considering whether an individual has a disability except ordinary eyeglasses and contact lenses. This means hearing aids, medication, and prosthetics may not be included when assessing a disability.

  4. "REGARDED AS": An individual needs only to show that the employer perceived her as having a mental or physical impairment and not that the impairment actually substantially limited a major life activity, unless the impairment is transitory (six months or less and is minor). Like many things done in Washington, the intent is imprecise but the practical effect will be greatly expanded coverage of the ADA to more claimants.

  5. EPISODIC or in remission conditions may constitute disabilities if, when active, they substantially limit a major life activity. Accordingly, when employers review a disability issue and a possible accommodation, they must account for the possibility of episodic disabilities.
ON THE HORIZON
The clarifications to the ADA could be read as a road map for plaintiff's counsel. In addition, new regulations from the Equal Employment Opportunity Commission (EEOC) are forthcoming. The new ADA specifically directs the EEOC to revise the regulatory definition of the phrase "substantial limitation". Employers should expect a definition that eases the burden on employees in proving this element.

SUGGESTED PRACTICES
A larger percentage of the workforce will be eligible for accommodations under the ADA clarifications. Claims or a request for an accommodation must now be carefully analyzed. Moreover, employers should implement a detailed interactive questionnaire to use during interviews of employees claiming a disability. Employers should also alert their human resources staff to the issues raised by the revised ADA, particularly the increase in situations requiring accommodation and policies for investigating discrimination claims.

How can we help?

Employers should audit and modify existing policies, handbooks, HR training, interactive process protocols and job descriptions to incorporate the changes to the ADA. ADA claims will be more like other discrimination claims: easier to bring and costly to defend. Remember, an educated management team is the best means of avoiding a discrimination lawsuit.

Questions?
Contact info@foleylawpractice.com or call 508-548-4888



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