The Impact of the Americans with Disabilities Act Amendments Act on Employers

On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act (the “ADAAA”) which significantly expands the scope of Americans with Disabilities Act coverage for cases arising as of January 1, 2009. This article will outline the relevant contents of the original ADA and discuss how the major changes brought by the ADAAA will impact employers.

The Original ADA

Under the original ADA, an employer was required to make reasonable accommodations that would permit a qualified employee with a disability to perform the essential functions of the job. This duty applies only if an employee is “disabled.”

The ADA, most relevantly, defined an individual with a “disability” as: 1) a person with a physical or mental impairment that substantially limits one or more major life activities; or 2) a person who is regarded as having such an impairment.

Impairment that Substantially Limits a Major Life Activity

Case law under the original ADA equated “substantially limits” with concepts like “considerable” or “to a large degree” or “an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” Toyota Motor Manufacturing Inc. v. Williams, 534 U.S. 184 (2002).

NOTE: The purpose of this presentation, and the accompanying materials, is to inform you of interesting and important legal developments. While current as of the date of presentation, the information given today may be superseded by court decisions and legislative amendments. We cannot render legal advice without an awareness and analysis of the facts of a particular situation. If you have questions about the application of concepts discussed in the presentation or addressed in this outline, you should consult your legal counsel. ©2009 Ratwik, Roszak & Maloney, P.A.

Regarded as Having a Disability

Under the original ADA, if a person was regarded (or treated by an employer) as if he or she had a substantially limiting impairment, he or she was considered “disabled” and thus protected under the Act. Sometimes, a person could be covered even if he or she had no impairment or had only a minor impairment, particularly if the employer acted based on myths, fears, or stereotypes about a person’s medical condition.

The Changes Brought by the ADAAA

The ADAAA is designed to expand the definition of “disability” under the ADA and provide more protection for disabled employees. These changes are intended to reject the Supreme Court interpretations in Toyota v. Williams and Sutton v. United Airlines, 527 U.S. 471 (1999). Congress made specific findings that the Supreme Court had narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress had intended to protect. Finding 4. Congress also found that lower courts had incorrectly found in individual cases that people with a range of substantially limiting impairments were not people with disabilities. Finding 6.

While the ADAAA expresses a clear desire to expand protections for disabled people, few concrete rules are provided. This will inevitably result in greater burdens on employers both because it expands protections given to disabled individuals and because of the lack of clear standards. The EEOC is currently working on proposed regulations which should provide some interpretive guidance to employers. It is unclear when the EEOC will issue these regulations.

Below is a brief summary of the major changes brought by the ADAAA:

1) New rules for interpreting the term “disability” are set forth. Specifically, these rules provide:

A) An impairment that substantially limits one major life activity no longer needs to limit other major life activities in order to be a disability.

For example, if an individual has a back problem that substantially impairs his or her ability to lift objects (but no other health problems), he or she is likely considered disabled under the ADAAA.

B) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

For example, if an employee has Relapsing-Remitting Multiple Scleroses, that employee is likely considered disabled under the ADAAA, even when the condition is in remission and no symptoms are present.

C) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of a specified mitigating measure.

For example, in determining whether an employee is disabled under the ADAAA, the employer will likely have to ignore that the employee uses a hearing aid that improves his or her hearing.

However, the corrective effects of ordinary eyeglasses or contact lenses are still considered in determining whether an impairment substantially limits a major life activity.

2) A non-exhaustive list of major life activities is set forth for the first time, which includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, and operation of a major bodily function. (Case law controversy over the bolded activities has been resolved by the statute in favor of broad coverage of the law).

3) Major life activities now include the operation of major bodily functions. A non-exhaustive list of major bodily functions is also now provided, which includes functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

4) “Substantially limits” in the context of a major life activity is now defined as “materially restricts.” This change is meant to make it easier for people to meet the “substantially limits” prong of the definition of disabled.

5) Discrimination against a qualified individual “on the basis of disability” is prohibited under the ADAAA, whereas the ADA merely prohibited discrimination “because of the disability.” While this is a subtle change, it is meant to broaden the scope of the inquiry regarding whether discrimination of a disabled person is taking place.

6) An individual no longer must show that he or she is substantially limited in a major life activity for purposes of the “regarded as” prong under the definition of disability. An individual must only show is that he or she has been “subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment.”

For example, taking action as simple as sending an employee to get a medical exam could be seen to violate this provision.

However, the ADAAA also indicates that conditions that are “transitory and minor” don’t trigger the “regarded as” prong of the definition of disability.

7) Employers no longer need to provide reasonable accommodations to individuals who solely meet the “regarded as” prong under the definition of disability.

For example, special training need not be provided to an employee who is merely believed to have a learning disability, if the employee does not in fact have a learning disability.

The ADAAA has fundamentally changed the current understanding of the ADA. Employers should have more interpretative guidance once the EEOC issues regulations. Employers will need to review and revise their policies regarding persons with disabilities. In addition, employers will want to train all management personnel on the amendments to the ADA and their implications.

With respect to disability discrimination cases, it is anticipated that the focus will now shift from whether an employee is disabled to whether an employee has been discriminated against on the basis of disability. Unfortunately, this will likely result in fewer state and federal cases being dismissed pursuant to the employers’ motions to dismiss or for summary judgment. It is important to note that the myriad of changes brought by the ADAAA are not retroactive. This means that events that give rise to claims or litigation, which occur prior to January 1, 2009, are not governed by the ADAAA, even if the litigation occurs after the ADAAA has taken affect.

If you have any questions related to this new legislation and its effects, you should consult your legal counsel.

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Margaret Skelton

About Margaret Skelton

Margaret Skelton is a shareholder of Ratwik, Roszak & Maloney, P.A. She practices in the areas of municipal law, labor and employment law, school law and general civil litigation. She represents public entities, including school districts, cities and counties. She also represents businesses in litigation matters. Prior to joining Ratwik, Roszak & Maloney, P.A., Ms. Skelton was an Assistant St. Paul City Attorney in the civil litigation division. She has tried cases to juries in state and federal court on a variety of matters. Ms. Skelton also routinely represents management in grievance arbitration, interest arbitration and negotiation of collective bargaining agreements. Ms. Skelton has been named a Minnesota Super Lawyer by Minnesota Law & Politics. She is a member of the Minnesota Defense Lawyers Association, Defense Research Institute (DRI), Minnesota Public Labor Relations Association, Minnesota Women Lawyers, Minnesota School Boards Association, Council of School Attorneys, Minnesota State Bar Association and Dakota County Bar Association. Ms. Skelton graduated from the University of Wisconsin-Madison with honors and cum laude from William Mitchell College of Law.