Business Management

American With Disabilities Amendments Act (ADAAA) Expands Coverage 

First came the Americans With Disabilities Act in 1990, and then after a nearly two-decade court withering of its provisions, the ADA Amendments Act (ADAAA) in 2008. 

The result? 

It would not be too much of a stretch to say that virtually anyone can now qualify as having a disability under the expanded—and some would say loosened—definitions in the Americans With Disabilities Amendments Act, which took effect on Jan. 1, 2009. 

The ADAAA was conceived to reverse court decisions and interpretive regulations by the Equal Employment Opportunity Commission (EEOC) that Congress felt had gutted the 1990 law’s original intent and scope of coverage. 

Many pitched legal battles were raged over who was disabled and who was not. Between 1992 and 2007, the U.S. EEOC received more than 253,000 charges of disability discrimination. Nearly 60 percent of those were found to have “no reasonable cause.” The Supreme Court ruled, for example, that a soldier who lost a leg and was given prosthesis was no longer disabled.

In addition, courts in the past denied protection to individuals suffering from mental retardation, epilepsy, diabetes, bipolar disorder, hearing impairments, back injuries, monocular vision (vision in only one eye), post-traumatic stress disorder, depression, heart disease, HIV, asthma, cancer, multiple sclerosis and many other clearly debilitating conditions—thereby excluding whole categories of disabilities from legal protection. 

Specifically, in Sutton v. United Airlines Inc. (1991), the Supreme Court held that the effectiveness of medicines and prosthetics in lessening and controlling an impairment could be weighed in an employer’s decision on whether an employee had a disability that required a “reasonable accommodation” as required by the ADA. 

The court further narrowed the interpretation of “substantially limits a major life activity,” the ADA’s benchmark for defining a disability, in its 2002 Toyota Motor Manufacturing, Kentucky, Inc. v. Williams ruling, which the EEOC seemed to reflect in its interpretation of “substantially limits” as “significantly restrict[s].” 

Restoring the ADA 

With the ADAAA, Congress struck back with a vengeance. The ADAAA pointedly orders the EEOC to redefine its interpretation of “substantially limits” to conform with the ADAAA in its implementing regulations. Further, not only does the new law reject (”specifically prohibits,” in fact) the mitigating influences of medication and prosthetics, but it also expands the “substantially limits a major life activity” qualification to make clear that just about everything is covered as a disability except (the one written exception in the act) the routine use of eyeglasses and contact lenses. 

Under ADAAA, “major life activities” now 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. 

Further, the “operation of major bodily functions” is now a “major life activity,” including but not limited to functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. 

Courts also previously held that episodic and intermittent impairments such as epilepsy and post-traumatic stress syndrome were not disabilities, but the ADAAA reverses that, maintaining that these impairments are indeed disabilities if they substantially limit a major life activity when active. 

The ‘Regarded As’ Disabled Pitfall 

The ADAAA also clarifies a category called “regarded as disabled.” In the past, many persons were not hired, or were discriminated against on the job or even terminated, because hiring agents, supervisors or employers regarded them as being disabled, but it was hard for these people to seek redress or bring successful legal action because of the “major life activity” bar. The original ADA provision required that the employer “entertain misconceptions about the employee,” either by mistakenly believing that the employee had a physical impairment that substantially limited one or more major life activities, or mistakenly believing that an actual non-limiting impairment substantially limited one or more major life activities. Gone now is the need for the “regarded as” perception to pertain to a major life activity. 

Under the new law, an individual is “regarded as disabled” if he or she “has been subjected to an action that is 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.” Pursuant to the ADAAA, then, an employee is now “regarded as” disabled—and thus entitled to protection from discrimination—if the employer believes the employee has any physical or mental impairment, regardless of whether the employer believes the impairment limits a major life activity. Perception is now the guiding standard. 

However, to scale the “regarded as” legal hurdle, an employee’s underlying impairment must not be one that is “transitory and minor.” The ADAAA defines a “transitory” impairment as one with an “actual or expected duration of six months or less.” 

The ADAAA does not require accommodations in “regarded as” situations, but should you offer any on your own as an employer, one labor law firm advises that you call such accommodations “job modifications” and not “reasonable accommodations.” This will help avoid any “regarded as” lawsuits. (You can see what a broad, grey area this has become, where both real and perceived impairments can be “regarded as” disabilities. And now with the elimination of “major life activity,” just about anybody can claim “regarded as” status if he or she has any longer-term impairment and is not hired, or is terminated or passed over for promotion, or if he or she otherwise feels mistreated on the job.) 

Knowledge is power, however, so when an employee you regard as disabled actively seeks an accommodation, you must try to find a “reasonable” means of doing so. It is here where the “transitory and minor” standard can play a potentially big role. 

What Does All This Mean? 

With all this broadening of standards that can lead to vast new disability claims and lawsuits, the good news is that the ADAAA is not retroactive, according to the Department of Labor (DOL), but, “We expect that EEOC will address this matter in its forthcoming regulations to implement the ADAAA.” It is important to remember here that the EEOC will no doubt be changing both composition and inclination under the new Obama Administration, but likely will not seek to apply the ADAAA retroactively, which would open up a whole new can of legal worms. 

Essentially, the ADAAA provides that individuals are not required to establish that they are substantially limited in a major life activity to fall within the definition of disabled. Accordingly, employers should now basically take an employee’s word that he or she is impaired and needs a “reasonable accommodation.” The practice of many employers in the past of sending people off for medical exams will no longer fly unless it can be proved that, disabled or not, the employee needs the exam as part of the job. The burden is now on the employer to find means for a reasonable accommodation rather than questioning an employee’s justification for requesting one. Indeed, the ADAAA places the entire burden on the employer by saying disability discrimination claims processing will undertake little scrutiny or analysis of whether the claimed impairment qualifies as a disability. 

Reasonable accommodations include arrangements such as telecommuting, working from home and using a modified work schedule, as well as measures such as making existing facilities accessible, acquiring or modifying equipment, providing qualified readers or interpreters, reassigning the employee to a vacant position, and changing tests, training materials and/or policies. 

Employers can reject an accommodation claim only if they can prove that an “undue hardship” to the business will result. Again, the standards here are quite strict. The bottom line is that, unless the accommodation is so burdensome and expensive that it will completely change the nature of the business or its ability to function, the employer must grant the accommodation. If you do invoke the “undue hardship” clause, you must be prepared to document thoroughly how the accommodation would adversely affect your business operations. 

Since the ADA covers all businesses with 15 or more employees on payroll, the amendment changes are potentially deep and far reaching, once they are properly implemented via workplace regulations. 

The EEOC, mandated to write the implementing regulations, has so far been unable to agree on the language and rules to bring the ADAAA to workplace life. The commission deadlocked 2-2 at its first ADAAA go-round in December 2008, and with tie votes equaling a no vote, it’s back to the drawing board. It will no doubt take the impending appointment of a fifth commissioner by President Obama to break the tie. (The two Republican commissioners voted to release the regulations, while the two Democrats voted no.) Once the commission does agree on the regulations, moreover, there will be a 60-day period for public commentary before they can go into effect. 

The U.S. Attorney General’s Office and the Department of Transportation will also be providing guidance on how to implement the provisions of the ADAAA. 

Protecting Your Business and Meeting Your Obligations 

All covered businesses are required to post in a conspicuous place the EEOC’s “Equal Employment Opportunity is the Law,” which is part of Personnel Concepts’ Space Saver-1 All-On-One State and Federal Labor Law poster. The SS-1 is further customized to include all required notifications from the company’s resident state as well as all federal notifications. Since the ADAAA forbids businesses from making pre-employment disability enquires or administering tests or exams, employers should also provide compliance training for all employees involved in the recruiting, hiring and supervising of disabled employees, who under the new law could be just about everyone. 

At the same time, it is essential that employers write their job descriptions with enough detail to provide clearly defined responsibilities, job skills, physical requirements, work experience, and educational achievements so that they have legal standing if challenged in court by an employee. An employer’s main defense is to show that the employee was not qualified to do the job because of deficiency in skills, experience, education and other job-related requirements. A person requesting a reasonable accommodation must be able to perform his or her job even in the absence of that accommodation, so job descriptions become both a vital hiring tool and a vital legal defense. 

In large firms with experienced human resources professionals, meeting the new requirements of the ADAAA will be challenging enough, but the people and mechanisms should already be in place for making the necessary transition. For small firms where the owner or owners have to go it alone, however, things might get a bit trickier. In addition, some states complicate compliance by having more demanding disability laws on the books. In California, for instance, the applicable state law on disability accommodation covers firms with just five or more employees. 

Again, the wild card here is what the Obama Administration does to implement its agenda for disabilities, which is described on WhiteHouse.gov in this way: 

“Second, end discrimination and promote equal opportunity by restoring the Americans with Disabilities Act, increasing funding for enforcement, supporting the Genetic Information Nondiscrimination Act, ensuring affordable, accessible health care for all and improving mental health care.” 

The agenda includes other goals, including training the disabled and enforcing equal opportunity hiring practices, but in this quotation (emphasis carried over from the original), note that “increasing funding for enforcement” is a major goal. Also, GINA (the Genetic Information Nondiscrimination Act), mentioned above, effectively extends discrimination protections to preclude people’s genetic history, including predisposition to a disease, from employment decisions and health insurance eligibility considerations. GINA is somewhat akin to an ADA for genetic information protection. 

What Should You Do as an Employer? 

The main goal in meeting ADA and ADAA obligations must be to obtain the proper knowledge and stay compliant, which will help ward off fines, EEOC claims and potential lawsuits while treating employees justly and equally. This can be a tall order, and Personnel Concepts offers some muscular tools to help employers tread these sometimes dangerous regulatory waters. To help you master all the requirements, and also to train yourselves and your staff to treat employees fairly and evenly by ADA standards, Personnel Concepts offers several harassment and discrimination compliance packages, including an ADA Amendments Act Compliance Kit and a comprehensive ADA Poster to keep you in notification compliance. As always, you can rely on Personnel Concepts as “Your Trusted Compliance Partner.”

Gary McCarty is a researcher and Web Content Manager for Personnel Concepts, pioneer and pacesetter in the labor law poster compliance industry for 20-plus years.
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