The ADA Amendments Act of 2008 (ADAAA) went into effect on January 1, 2009 and provides broader protections for disabled workers, turning back the clock on Supreme Court rulings that Congress deemed too restrictive of disabled employees’ rights. The bottom line is that more employees will fit within the definition of disabled under the ADA.
As amended by the ADAAA, Title I of the ADA prohibits employers from discriminating against a qualified individual on the basis of disability. It applies to private employers with 15 or more employees, state and local governments, employment agencies, and labor organizations. The ADA requires that employers provide reasonable accommodation to the known disability of a qualified individual, unless to do so would impose an undue hardship on the operation of the employer’s business.
The amendment overturns court decisions and states that the ADA is intended to provide “a broad scope of protection” for employees. Mitigating measures such as medications and other interventions that manage a disease or disability must be ignored. As a result, more employees will be covered. Policies and practices will have to be modified. Employees who would not have been protected will now be covered by the ADA, and employers will need to document and engage in interactive discussions to determine what reasonable accommodations may be necessary.
The Act adds examples of major life activities to the ADA, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. Major life activity also includes the operation of major bodily functions, such as functions of the immune, respiratory and neurological systems. The Act also makes clear that an impairment that substantially limits one major life activity need not limit others to be considered a disability.
The legislation clarifies the standard for being “regarded as disabled.” An individual will have to show only that he or she was discriminated against because of an actual or perceived impairment, even if the impairment doesn’t limit or isn’t perceived to limit a major life activity. Transitory or minor impairments (with an actual or expected duration of six months or less) won’t qualify for “regarded as” protection. The potential for claims from employees who believe they were regarded as disabled could increase exponentially. It will be critical for employers to establish and train supervisors on policies and procedures for handling such situations.
If an employee has an impairment that, when active, would substantially limit a major life activity, then he or she is disabled and protected under the new ADA, even if in remission or when not suffering from an episode. This might include diseases such as multiple sclerosis, lupus, epilepsy or a seizure disorder.
Finally, look for comprehensive regulation in 2009. Under the amendment, the EEOC has authority to issue binding regulations and interpretive guidance to further flesh out the statute. iBi