President Bush has signed legislation which will significantly alter the Americans with Disabilities Act. These changes took effect January 1, 2009, and should have an immediate impact for companies dealing with employees claiming they have a disability. The changes are intended to restore coverage for many groups who have been interpreted by the courts to not be disabled under the ADA.
Some of the more substantial changes include the following:
- Courts are to adopt a broader standard on disability cases to follow the findings and purposes of the ADA (the House version of the ADA amendments, which, fortunately was not adopted, wanted to make this mandate even broader by redefining when a major life activity was substantially restricted);
- Major life activities are specifically defined 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;
- Covered major life activities are also defined to include the operation of major bodily functions, i.e., functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions;
- Determinations of whether an impairment substantially limits a major life activity shall be made without regard to the effects of mitigating measures. There are some minor exceptions to this new rule. For instance, employers and courts can still consider ordinary eyeglasses or contact lenses as part of the mitigating measures determination;
- An impairment which substantially limits one major life activity need not limit other major life activities to be considered a disability;
- An impairment which is episodic or in remission is a disability if it would substantially limit a major life activity when active; and
- The burden for an individual to prove a “regarded as” disabled has been lessened. Under current law, to establish a “regarded as” claim, a plaintiff has to establish both that the employer regarded the plaintiff as having an impairment and that the employer believed the impairment substantially impaired a major life activity. Under the amendments, the employee need only demonstrate the employer perceived the individual as having a mental or physical impairment. It will no longer be necessary for the plaintiff to also establish the employer “regarded” him or her as being substantially limited in a major life activity, which is much more difficult. To help balance this new change for the employer, the “regarded as” prong under the ADA will not apply when an impairment is transitory and minor. A transitory impairment has been defined as an impairment with an actual or expected duration of 6 months or less.
There have also been several other changes to the ADA, although the foregoing changes are some of the more prominent ones. One of the most troubling aspects about these changes is the amendments expand an area of the law through which it is already extremely difficult and costly for companies to navigate. Some of these changes will essentially require HR professionals to make decisions on medical issues on which they have no expertise or specific training, such as determining whether someone has a “transitory” impairment and for how long under the “regarded as” prong, or whether the operation of certain body functions being impaired are major life activities given the broad language of the amendments, etc. While these issues can be resolved with the help of doctors, the fact-finding process will become much more expensive for companies and will almost assuredly result in an increase in ADA claims.
Equally troubling, the amendments will largely eliminate the potential for employer summary judgments in ADA cases. Currently, most ADA cases are disposed of on summary judgment either because the plaintiff’s impairment can be controlled by mitigating measures, e.g., diabetes controlled by insulin, etc., and, therefore, does not constitute a “disability” or because the plaintiff can’t prove the second element of a “regarded as” claim, i.e., can’t prove the employer believed the plaintiff’s impairment substantially limited a major life activity. With mitigating measures largely eliminated from the consideration of whether a plaintiff has a “disability” and elimination of the second prong of a “regarded as” claim, ADA plaintiffs will be able to survive most summary judgment motions, and “regarded as” claims will be routinely made in virtually all cases. Thus, the cost of ADA litigation will rise for employers, as will the litigation risk because, if not settled, most claims will be decided by a jury.
To help clarify some of these issues, the EEOC has been charged with the task of issuing further regulations and guidance on the changes. Regardless of when that guidance is provided, there are several steps you should be taking right now to prepare for these new revisions.
First, you should review your policies and practices to make sure the ADA’s interactive process considers these expansive definitions of what constitute major life activities. When confronted with a potential ADA claim, you will need to remember the categories of major life activities which have now been specifically defined. Keeping a checklist nearby of the protected categories may prove useful especially with some of the more hazy major life activities such as “thinking” and “concentrating.” And remember, with the exception of eyeglasses or contact lenses, mitigating measures should not be considered. Second, you will need to exercise greater vigilance regarding an employee who can claim he or she is “regarded as” disabled because it will now be easier for the employee to establish that standard. Determining whether the employee has had a condition for more than 6 months and whether or not it is minor will be critical determinations.
As with many obstacles in the employment arena, being aware of what the law requires is the first step toward protecting the company. With some good judgment and a sharp understanding of the new changes, companies can better respond to ADA inquires in this