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New ADA amendments - how will they affect you?

11.01.2008

Earlier this month, the U.S House of Representatives and Senate passed the ADA Amendments Act of 2008 (ADAAA) with broad bipartisan support. President George W. Bush signed the ADAAA into law on September 25. The amendments will take effect on January 1, 2009.

Basics

The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of someone’s disability in employment, public accommodations, and other contexts. The new law overturns three 1999 U.S. Supreme Court decisions requiring courts to consider “mitigating measures” in determining whether an individual has an ADA-covered disability. The law also overturns a 2002 Supreme Court decision that some believed made it too difficult to prove someone is “substantially limited” in a “major life activity.”

The ADAAA provides that the “definition of disability . . . shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of [the ADA.]” The law requires the Equal Employment Opportunity Commission (EEOC) to draft new regulations establishing a less demanding standard for showing the existence of a substantially limiting physical or mental impairment.

The ADAAA also eases the burden of proving that an employer discriminated against a worker it “regarded as” having a disability. Traditionally, an employee claiming she was “regarded as” having a disability had to prove that her employer either mistakenly regarded her as having an impairment that substantially limited a major life activity or mistakenly believed that an actual impairment substantially limited her. The ADAAA will make an employer liable under a “regarded as” theory if the employee can show 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. That’s expected to make it considerably easier for employees to prevail on “regarded as” claims.

The ADAAA also clarifies, however, that “regarded as” claims cannot be based on transitory and minor impairments that are expected to last less than six months. The new law states that employers are not required to provide a reasonable accommodation to employees who are regarded as disabled, an issue over which the federal courts of appeals were previously split.

Bottom line

With the enactment of the ADAAA, we’re back to the future. Years of Supreme Court precedent defining what constitutes a disability can be thrown out the window because we’ve gone back to June 21, 1999, the day before the Court decided the first of a series of ADA cases and sharply limited the definition of “disability.” Significantly more people will qualify for protection under the revised ADA, which supporters of the bill argue should have been the case all along.

You may find yourselves spending more time and money on accommodations since a greater number of people will be eligible for them. Yet the law may also benefit employers by providing a clearer standard for when accommodations are required. The new Act removes some of the guesswork and may reduce litigation expenses for employers that had difficulty determining whether their employees were “disabled” under the original ADA.

The focus of ADA litigation will now be on whether employers failed to reasonably accommodate disabled employees or took employment actions because of their disabilities, not on whether they were actually disabled in the first place. That means you must cover your bases when dealing with employees with medical problems, ensuring that you have performed and documented the reasonable accommodation process. Further, you must carefully document valid, nondisability-related reasons for any employment action.

The ADAAA becomes effective January 1, 2009, which gives the EEOC time to update regulations to conform to the new law. In the meantime, you should revisit your own policies and procedures with the understanding that employees who previously may not have qualified for accommodations or satisfied the requirements to file a discrimination claim are heavily favored by the revised ADA.

Learn more about the ADAAA by listening to the HR Hero audio conference “ADA Amendments Act Takes Effect Jan. 1: Get Ready for New Challenges.” To purchase a CD of the conference, call (800) 274-6774 or visit www.HRhero.com/audio/ ADAamendmentsAct2/??N385.

Copyright 2008 M. Lee Smith Publishers LLC 
KENTUCKY EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Kentucky employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.

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