Jean Ohman Back
On September 24, 2008, President Bush signed the ADA Amendments Act (ADAAA), which goes into effect on January 1, 2009. The ADAAA significantly expands the number of workers who are "disabled" and entitled to the ADA's protections. Now is the time to prepare.
I. DOES THE ADA APPLY TO YOUR BUSINESS?
The ADA applies to employers with 15 or more full-time, part-time, and temporary employees for at least 20 weeks during the current or preceding calendar year. If your company does not meet this threshold, you need not be concerned with this new law. However, your company is probably covered by state disability law. You will want to check your state's laws to ensure your company is meeting its requirements.
II. HOW DOES THE ADAAA EXPAND THE ADA TO MORE WORKERS?
The ADAAA directs employers and courts to interpret the ADA to "provide broad coverage. . .". It adds and changes several definitions to broaden the term "disability" and thereby classify more workers as disabled:
The term "disability" in the ADA means –
(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
The ADAAA does not change the definition of "disability." However, it defines the meaning of "major life activity," and redefines the term "substantially limits" and what it means to be "regarded as" disabled. Congress' tinkering with these terms results in a substantial broadening of the term "disability."
ADAAA Adds a Definition for "Major Life Activity"
In the past, the ADA did not define the term "major life activity." There was disagreement among courts about the term which resulted in a certain amount of guessing. The ADAAA attempts to clarify the issue by defining a "major life activity" to include:
- "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working";
- "the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."
Some courts had already decided that working was a major life activity, but others had not. Now, it is expressly so. This change, in conjunction with the change in the term "substantially limited" may significantly increase the number of workers who are "disabled" because they are unable to perform their job.
ADAAA Broadens the Definition of Substantially Limited
In the past, the United States Supreme Court and the EEOC narrowly defined the term "substantially limits" to "create a demanding standard for qualifying as disabled." Toyota Motor Mfg. v. Williams, 534 U.S. 184, 122 S. Ct. 681, 151 L.Ed. 2d 615. Congress rejected this interpretation of the ADAAA finding that it "express[es] too high a standard." The ADAAA, however, does not offer an alternative. It simply commands that an employer's interpretation of the term "substantially limits" must be consistent with the ADAAA. All we know at this point, therefore, is that "substantially limits" is a lower burden than it was in the past.
This change could have a significant impact on what it means to be substantially limited in the major life activity of working. Previously, courts ruled that one must be unable to work in a broad range or class of jobs. An employee who was simply unable to perform his or her job was not disabled. Now it may be possible to be substantially limited in the major life activity of working (and, therefore, disabled) even if the only job the worker is unable to perform is his or her own.
Hypothetical: A sheet metal worker strains his back playing with his kids at home. He cannot perform the duties of sheet metal work, but he can perform other jobs, like forklift driver, flagger, or helper. Under the old ADA, he would not be disabled because he is not limited in working in a broad range or class of jobs. Under the ADAAA he may be disabled even though he can still work generally.
Employers Can No Longer Consider Mitigating Measures When Evaluating Whether an Employee's Impairment Substantially Limits a Major Life Activity
In Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999), the Supreme Court held that an airline could refuse to hire pilots with substantially limited vision even if their vision could be corrected with lenses. It reasoned that with the mitigating measure of glasses, the pilots were able to see, and therefore, were not disabled. For the last nine years, therefore, employers have not accommodated employees who have no apparent or discernable disability because the disability is corrected or controlled with devices or medication.
The ADAAA reverses this decision. It requires an employer to ignore mitigating measures and look at the underlying untreated impairment. Specifically, the ADAAA prohibits employers from considering the following mitigating measures:
- medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary glasses or contact lenses), prosthetics, including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, or oxygen therapy equipment and supplies;
- use of assistive technology;
- reasonable accommodations or auxiliary aids or services;
- learned behavioral or adaptive neurological modifications; and
- ordinary eyeglasses or contact lenses are not mitigating measures
The bottom line is that many people who were not previously thought to be disabled because they experienced no present impairment, are now disabled under the ADAAA.
Impairments That Are Episodic or in Remission Are Disabilities
Impairments that are episodic or in remission, such as cancer, epilepsy, diabetes, cerebral palsy and muscular dystrophy are covered if, when active, the impairment substantially limits a major life activity.
ADAAA Broadens "Regarded As" Disabilities
This is the area in which we may see a significant increase in litigation. The ADA protects employees against an employer who wrongfully regards them as having a disability. The idea is to dispel misperceptions about what an employee can or cannot do. For example, many employers may perceive employees with HIV as being unable to perform their job, when in fact they can perform as well as anyone else.
Prior to the ADAAA, an employee could not prove a "regarded as" claim by simply showing he or she had a mental or physical impairment. Rather, the employee had to prove that the employer regarded the employee as "disabled" - as having a physical or mental impairment that substantially limits a major life activity. This burden kept the floodgates at bay.
For example, take Sally Supervisor. She asks Michael Mechanic how his cancer treatments are going and expresses sympathy with how tired he must be. When Michael fails to get the next promotion, he accuses Sally of regarding him as disabled and uses her expression of sympathy against her.
Under the old ADA, comments of sympathy were not enough to prove that Sally regarded Michael as disabled. Therefore, Michael's claim would have likely been dismissed before reaching a jury. Now an employer's expressions of sympathy and compassion may be sufficient to take a case like this to trial. All Michael has to show is that Sally perceived Michael as having a mental or physical impairment. He can do that by pointing at her knowledge of his condition as revealed by her sympathetic statements. Courts may find he has enough evidence to get passed summary judgment and have his case heard by a jury.
As another example, consider Big Joe who has angry outbursts, gets in a fight at work, or is arrested for driving under the influence. The employer could terminate his employment, but wants to give him one last chance. At the same time, the employer has to protect other workplace employees and, therefore, requires Big Joe to seek treatment or counseling in order to keep his job. These arrangements are commonly called "last chance agreements."
Previously, Big Joe could not bring a "regarded as" claim under these circumstances. He would have been unable to prove that his employer perceived him as "disabled" – having an impairment that substantially limits a major life activity. Now, Big Joe only need prove that his employer perceived him as having a mental impairment. That should not be difficult. Why else would the employer require him to seek counseling? Again, Big Joe's case might see a jury.
Are employers being encouraged to get out of the business of helping employees through what may be difficult personal crises? Are employers being encouraged not to give employees second chances? It does appear that what many employers view as compassion, the ADAAA may view as discrimination.
The ADAAA does narrow the "regarded as" definition in some respects. It excludes from the definition of "regarded as" disabled, temporary impairments with an actual or expected duration of six months or less. Therefore, an employee will have to show that the employer regarded the employee as having a long-term impairment. In addition, the ADAAA clarifies that an employee who is merely regarded as disabled need not be accommodated unless he or she is actually disabled.
III. DO THE CHANGES APPLY RETROACTIVELY?
The Supreme Court has stated that statutes should not be retroactive if they would impose new duties with respect to acts that already occurred, unless retroactivity is required by explicit statutory language or by necessary implication. Congress does not expressly apply the ADAAA retroactively. Therefore, one would hope it will not apply retroactively.
Retroactivity, however, is a complex area of the law. Some courts have applied statutes retroactively absent express direction from Congress. In the ADAAA, Congress makes clear that it believes the definition of "disability" has always been broad. It was simply erroneously interpreted by the courts. If that is true, a court could choose to follow the newly articulated interpretation in the ADAAA on the grounds that it is and always has had broad coverage.
IV. NO REVERSE DISCRIMINATION UNDER THE ADA
The one area in which the ADA was not expanded was in the area of reverse discrimination claims. The ADA now expressly states that there is no claim that an "individual was subject to discrimination because of the individual's lack of disability." A nondisabled person, therefore, cannot claim discrimination because he or she was not given the same accommodations as a disabled person.
V. WHAT DO THE AMENDMENTS MEAN FOR YOUR BUSINESS?
- Check your handbook and all written policies related to disabled workers and amend them to reflect the new changes to the ADA;
- Review your files and talk to supervisors and managers. Identify any situations where your company denied a request for accommodation or otherwise concluded that an employee is not disabled under the ADA. If that denial will continue after January 1, 2009, reevaluate whether under the amended ADA an accommodation will be required;
- Review your interactive process, and prepare to document the increase in requests for accommodations;
- Train supervisors and managers to identify disabilities under the new definition and understand the company's obligation to communicate with workers who request accommodations;
- Shift your focus away from whether an employee is disabled and toward finding an accommodation; and
- If you haven't already done so, program your favorite employment advice lawyer's number into your speed dial. A 30-minute phone call may save you a trip to the courthouse.