ADAAA broadens scope of covered employees

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The Americans with Disabilities Act Amendments Act (ADAAA), signed Sept. 25, 2008, significantly broadens the scope of employees who may be covered under the ADA. The act takes effect Jan. 1, 2009.

At present, the ADA defines the term “disability” as, “a physical or mental impairment that substantially limits one or more of the major life activities” of an individual. 42 U.S.C. 12102(2)(A). This also includes “having a record of” such impairment, or “being regarded as” having such an impairment. 42 U.S.C. 12102(B),(C).

Although the ADAAA does not expressly modify the three-pronged definition of the term “disability,” it may significantly affect the way the analysis is applied.

The primary impact of the ADAAA is that it overturns established U.S. Supreme Court case law that has previously defined disability narrowly and significantly limited those individuals covered by the ADA. The new act specifically overturns Sutton v. United Airlines in which the Supreme Court held that mitigating measures, such as medication, prosthetic devices, individual behavioral or neurological adaptations or similar measures were to be considered in determining whether an individual is considered “disabled” under the ADA.

The ADAAA now includes a non-exhaustive list of mitigating measures that should no longer be considered in assessing coverage under the ADA (excluding eyeglasses and contact lens generally). For example, a person who has diabetes should now be considered in his non-medicated state; the effects of insulin injections should not be considered. In addition, any negative effect of a mitigating measure, such as the side effects of a medication, may also be considered if the effect itself causes or contributes to the substantial limitation.

Another significant change the new act makes is that it includes a non-exhaustive list of “major life activities.” Prior to the amendments, there was a great deal of litigation over whether an activity qualified as a “major life activity.” The ADAAA may have the practical effect of significantly reducing this area of litigation.

It expressly provides that “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” It also expands the definition to include, “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” as major life activities.

As previously noted, the ADA currently protected not only individuals who are disabled under the law, but also those who have been perceived to be disabled. Under the current interpretation of the ADA, a plaintiff claiming that she has been discriminated against by her employer because she was “regarded as” disabled is required to prove that her employer believes that the employee has a substantially limiting impairment.

Under the ADAAA, an individual will be “regarded as” disabled if she “has been subjected to an action prohibited under this act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” This sets the bar much lower for a plaintiff to assert coverage under the ADA — the plaintiff may only need to show that the employer perceived the employee to be impaired, regardless if the employer perceived the impairment to be substantially limiting (transitory or minor impairments with an expected duration of less than six months excepted). Such a broad application of the “regarded as” section of the ADA will require employers to be especially cautious in their dealings with employees who have or may have any type of impairment, no matter how minor or trivial.

Again, in a major shift sway from the manner in which courts have interpreted the ADA, the ADAAA provides that an “impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,” which means that symptom-free employees whose diseases are in remission will now fall under the protections of the ADAAA. Examples of covered conditions would be epilepsy, lupus, and seizure disorders.

Employers must now be prepared to engage in the interactive process with a greater number of employees who may not have been previously covered under the ADA. As noted, many employees who are not currently covered by the ADA may qualify as “disabled” in less than two months.

Employers should review and as necessary revise company policies procedures regarding issues such as requests for accommodations, leaves of absence and handling of employee complaints. Employers should provide training to key human resources personnel and other managers that are charged with handling issues such as requests for accommodations and medical leaves. Employers should also seek out the advice of qualified counsel to help them wade through the changing landscape of disability discrimination.