October 2, 2008
Lost in the news about Obama vs. McCain and federal bailouts of the financial system has been a seminal change in disability law that will effect your business. President Bush has just signed into law the ADA Amendments Act of 2008 (“ADAAA”) which significantly amends the Americans with Disabilities Act (“ADA”), and becomes the law January 1st. The text of this law is available here.
The bottom line is that many more of your employees will be deemed to be “disabled” and will qualify for reasonable accommodations and protections from claimed discrimination. There will be more disability discrimination lawsuits. In a recent labor advisory, we advised you that this change was coming. In this advisory, we will attempt to provide you with more insight and analysis of how the law has changed and what to do about it.
The first President Bush signed the ADA into law 18 years ago. That law prohibits employers on a national basis from discriminating against disabled applicants or employees who can perform the essential functions of a job with or without a reasonable accommodation. It applies to businesses with 20 or more employees. In enacting the ADA, Congress estimated that 43 million Americans were covered by its protections.
Since the enactment of this law, academic studies have shown that employers are winning more than 90% of ADA claims filed in federal court. Many of these decisions have resulted from a threshold determination that while the employee may have physical or mental problems, the employee was not “disabled” as defined under the ADA. Congress reacted to this state of the law with the ADAAA.
More Employees Will Be Deemed “Disabled”
Congress’ stated goal for this new law, the ADAAA, was to clarify the standards of the ADA and overturn several Supreme Court cases that have restricted the applicability of the ADA to many employees with physical and mental problems that did not rise to the level of a “disability,” as defined by the ADA. Congress stated that the primary object of the “ADA should be whether [employers] … have complied with their obligations,” not “the question whether an individual’s impairment is a ‘disability’ under the ADA.”
Under the ADA, a “disability” is “a physical or mental impairment that substantially limits one or more major life activities.” Previously, the Supreme Court determined that substantially limited in a major life activity means, “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” The ADAAA states that this is “too high a standard.” Congress explained that the determination of who is covered under the law “shall be construed in favor of broad coverage of individuals under this Act.”
The ADAAA reaffirms that the disability must effect a major life activity. The list now includes: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The ADAAA also now specifically lists functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions as major life activities.
The ADAAA provides little clarity as to what “substantially limits” means. This issue will continue to be argued in the courts. Nevertheless, the ADAAA indicates that conditions such as learning disabilities, carpel tunnel syndrome, severe back pain, and depression may now be considered “disabilities,” as opposed to certain previous court rulings. Nevertheless, we expect the courts will continue to make an individualized assessment to determine whether a particular employee’s condition makes that employee “disabled,” as defined by the law.
Mitigating Measures and Episodic Problems
In determining who is “disabled,” it used to be that if the employee “mitigated” (i.e., improved) his or her impairment sufficiently, then the employee would not be considered “disabled.” Thus, under the old law, an employee with significant hearing problems who resolved those problems by using a hearing aid would not be protected under the ADA. Under the new ADAAA, that employee is now “disabled.” Therefore, in determining whether an employee has a “disability,” employers should no longer take into account medications, hearing aids, prosthetics or other devices that may mitigate the employee’s condition. The only exceptions to this rule are ordinary eyeglasses and contact lenses.
The ADAAA explicitly defines “disability” to include “an impairment that is episodic or in remission … if it would substantially limit a major life activity when active.” The statute does not limit the meaning of episodic or remission. Thus, an employee with episodic seizures that only occur once every 25 years will now argue that he or she is “disabled” under the ADAAA – even though those seizures have never occurred at any time while employed. Employees with diabetes that is controlled by diet, exercise, and medication; employees with cancer in remission; and employees who have managed their mental illness with medications are now likely to fall under the protections of the law.
“Regarded As” Disabled
Congress has also changed the standard to prove an employer discriminated against an employee whom it “regarded as” having a disability. Under the ADA, an employee is considered “disabled” if the employee is “regarded as having an impairment” by their employer. Traditionally, employees claiming they were “regarded as” disabled had to prove their employer regarded them as having impairments that substantially limited a major life activity.
Now, under the ADAAA, an employee is “regarded as” disabled if they can prove discrimination because of an actual or perceived physical or mental impairment, regardless of whether the impairment actually limits or is perceived to limit a major life activity. The ADAAA does note, however, that the “regarded as” definition does not apply to impairments that are transitory and minor, with an actual or expected duration of 6 months or less. The theory behind this change is to try to prevent employers from making decisions based upon fears and stereotypes.
This amendment likely opens the door to many more disability claims against employers. For example, is an employee who is overweight “regarded as” disabled under this definition? What about an employee who reads more slowly than other employees? The difficulty with this provision is that virtually anything could be “regarded as” a disability, without it actually having to meet any rigorous standards, such as substantially limiting a major life activity.
Despite this expansion in the law, the ADAAA does not require employers to provide reasonable accommodations for employees who are “regarded as” disabled, but not actually “disabled.” The employer must merely abstain from discriminating against the employee on the basis of the perceived disability. This clarifies a previous split in the courts on this issue.
No Reverse Discrimination
The ADAAA does throw one bone to employers. The amendments make clear that there is no such thing as reverse disability discrimination claims. Reverse discrimination claims have arisen where non-disabled employees have claimed that they should receive the same reasonable accommodations that a disabled employee has received. The ADAAA makes clear that disabled employees may obtain certain changes to their jobs to which other employees are just not entitled.
Impact on Your Business
This change in the law will result in more disability lawsuits being filed. The bulk of ADA litigation is likely to shift away from whether someone fits under the definition of “disabled,” and it is likely to move to the questions of: (i) can the employee perform the essential functions of the job; (ii) did the employer offer a reasonable accommodation; (iii) can the employer prove an undue hardship; and (iv) did the employee’s disability actually motivate the employer’s decision.
In light of this change of law and its anticipated effect in the courts, employers should do the following:
- Review your policies to make sure your policies do not contradict the new law. As always, changes to employee handbooks should be communicated to the workforce.
- Make sure your job descriptions are accurate and up-to-date. We have frequently seen in litigation where an employer argues that a certain job requirement constitutes an essential function, only to find that the job description undermines this contention.
- Train your Human Resources staffs and your frontline managers about these changes. Company employees who are involved with hiring decisions, assignment of job duties, leave of absence administration, or terminations need to have some background on this law as it expands.
- If you have denied reasonable accommodation requests to current employees because you have determined that the employee did not satisfy the “disability” requirement of the ADA, you should consider whether the ADAAA changes that analysis.
If you have any questions about the impact of the ADAAA to your business, please contact any member of the Frost Brown Todd Labor and Employment Department.