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The ABCs of the new ADAAA: the recently expanded Americans with Disabilities Act means more employees could qualify for ADA protection. Learn from an employment lawyer what you need to know about the ADAAA to advise your business customers and protect your own agency from lawsuits.

On Jan. 1, 2009, the Americans with Disabilities Act (ADA) was significantly and purposefully amended to broaden the number of employees who can claim to be disabled and seek ADA protection. In an unprecedented move, Congress discarded a series of U.S. Supreme Court decisions that effectively restricted ADA protection to a limited number of employees who truly were "disabled" (as defined under the ADA) instead of bestowing protection on virtually anyone with a physical or mental problem. Not any more.

Under the ADA Amendments Act of 2008 (ADAAA), more individuals will likely be deemed disabled and will qualify for reasonable accommodations and protections from alleged discrimination. Additionally, because of the watered-down interpretation of disability, more lawsuits likely will be filed and covered employers (15 or more employees) will need to re-assess their reasonable accommodation practices. These changes will directly affect not only your customers' operations, but your own agency's human resources practices as well.

Ironically, the ADA's base definition of disability was untouched. An individual still must demonstrate he: a) has a physical or mental impairment that substantially limits one or more of his major life activities; b) has a record of such an impairment; or c) is regarded as having an impairment. The ADAAA critically alters the way the three crucial terms highlighted above within that definition will be interpreted, and establishes new standards that must be considered. If a qualified employee or applicant has a disability under A or B above, then the employer has a duty to accommodate that individual's actual disability if it would enable him to perform the essential functions of the job or permit him to enjoy equal employment opportunity. To determine whether a reasonable accommodation exists, or whether any accommodation would cause an undue hardship, the employer must participate in an interactive dialogue with the individual.

"SUBSTANTIALLY LIMITS" AND "MAJOR LIFE ACTIVITIES"

Under the prior ADA, the term "substantially limited" in a major life activity meant "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." This interpretation was a formidable barrier for many ADA plaintiffs to hurdle. Consequently, the ADAAA rejected it.

Unfortunately, despite determining that the standard was "too high," Congress provided little if any clarity to the phrase "substantially limits." Rather, it directed the Equal Employment Opportunity Commission (EEOC) to revise its regulations (which essentially mirrored the U. S. Supreme Court's interpretation) to reflect Congress's intent to considerably lower the amount of restriction an impairment must have on a major life activity. Under this highly anticipated interpretation, conditions such as learning disabilities, carpal tunnel syndrome, severe back pain, and depression may now be considered disabilities--contrary to current case law.

The prior ADA did not define the term "major life activities." Rather, the EEOC (by regulation) and the courts (by case law) developed a list of examples. The ADAAA expands that term to epic proportions. The revised and non-exhaustive list of major life activities includes:

* Caring for oneself

* Hearing

* Performing manual tasks

* Seeing

* Speaking

* Breathing

* Learning

* Reading

* Concentrating

* Eating

* Sleeping

* Thinking

* Walking

* Communicating

* Standing

* Bending

* Lifting

* Working

The following major bodily functions also are included in that definition: normal cell growth; digestive bowel; bladder; brain; and the neurological, respiratory, circulatory, endocrine, reproductive and immune systems.

Practically speaking, the broadened definition of major life activities, coupled with the lowered substantially limits standard, makes it challenging to refute the notion that most, if not all, individuals arguably now can be considered disabled under the ADA.

"REGARDED AS" CLAIMS

Under prior ADA case law, employees claiming they were "regarded as" disabled had to prove their employers regarded them as having impairments that substantially limited a major life activity, under the much more difficult U.S. Supreme Court standard. Under the new ADAAA, an individual simply has to prove she has been subjected to an adverse employment action (e.g., demotion, poor evaluation, discharge) 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. The focus now is on the employer's intent-without regard to the impairment's purported severity. Bottom line: It now is much easier for employees to assert "regarded as" claims.

The ADAAA does provide two limitations to this expansive "regarded as" disability claim. First, it does not apply to individuals with transitory (actual or expected duration of 6 months or less) or minor impairments. Second, employers are not required to provide reasonable accommodations to employees who are "regarded as" disabled but are not actually disabled.

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MITIGATING MEASURES DON'T MATTER

Casting aside time-honored law, the ADAAA states that mitigating measures (other than ordinary eyeglasses and contact lenses) shall not be considered in determining whether an impairment substantially limits a major life activity. Those measures include medications, medical supplies, prosthetics, hearing aids, and learned behavioral or adaptive modifications. Thus, if Jack has a mental impairment whose limitation essentially is neutralized or mitigated by medication, he still may be deemed to be substantially limited in a major life activity.

The ADAAA also changed the way episodic conditions and conditions in remission are treated. Under prior ADA case law, if Jill had a debilitating seizure 10 years ago, but has not had one since then, she did not necessarily receive ADA protection because the court focused on the impairment as a whole, not just when it was at its worst. In other words, Jill is not "disabled" today because she currently is not suffering from seizures.

That has changed. The ADAAA provides "an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." Accordingly, employees with diabetes controlled by diet, exercise and medication, cancer in remission, or a seizure condition that has not surfaced for 10 years now may seek ADA "disability" protection.

The ADAAA also had to confirm that "reverse discrimination" claims, in the disability context, are meritless and do not exist. Those claims arose when a non-disabled employee demanded the same reasonable accommodation that a disabled employee received. The record is clear. Employers do not have to provide reasonable accommodations to non-disabled employees simply because they provide them to disabled employees.

BEST PRACTICES

Most ADA lawsuits likely will no longer focus on whether an individual fits under the definition of disability. That definitional bar has been lowered to an amazingly low level. Rather, attention will shift to the following inquiries:

* Can the employee perform the essential functions of the job?

* Did the employer engage in an interactive dialogue with the employee to determine whether he can perform those essential functions with or without a reasonable accommodation?

* Did the employer offer a reasonable accommodation?

* If not, can the employer prove an "undue hardship?"

* Did the employee's disability (e.g. "medical condition") actually motivate the employer's adverse employment action?

Accordingly, employers should consider the following practices:

* Review and revise all employment policies that encompass employees with medical conditions (e.g., discrimination, harassment, light duty, leaves of absence, reasonable accommodations).

* Confirm that job descriptions are accurate and list the essential functions of the job.

* Train supervisors. Callous retorts about an employee's medical condition or a careless response to a reasonable accommodation request could spark an ADA claim.

* Establish and publicize a "reasonable accommodation" process that an employee (who believes she needs an adjustment to her job because of her medical condition) can use. Define the process. Identify the contact person. Document all efforts. Remember, it is an interactive dialogue-not a monologue.

Supervisors should consult with human resources before taking an adverse action against an employee with a medical condition, granting a "reasonable accommodation," or concluding no "reasonable accommodation" is possible.

Make sure all employment decisions are based on objective work performance or misconduct, not on assumptions or stereotypes.

If reasonable accommodation requests to employees have been denied based on a determination that they did not satisfy the "disability" requirements of the ADA, reconsider whether the ADAAA changes that analysis.

Good rule of thumb: If supervisors hear the words "restriction," "limitation," "medical condition," "leave of absence," or "accommodation," they promptly should alert human resources.

Jeffrey Shoskin has represented employers in all phases of private and public sector employment and labor relations matters for more than 26 years. He has been recognized by his peers for inclusion in "The Best Lawyers in America" publication, selected as an Ohio Super Lawyer, and is a Fellow of the American Bar Foundation. He can be contacted at 513-651-6834 or jshoskin@fbtlaw.com.
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Title Annotation:FEATURE STORY: ADA AMENDMENTS ACT
Author:Shoskin, Jeffrey
Publication:American Agent & Broker
Date:Jun 1, 2009
Words:1424
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