ADA amendments take effect Jan. 1

October 24, 2008
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New amendments signed into law in the last month will broaden the definition of “disability” under the Americans with Disabilities Act when they go into effect Jan. 1. For employers, it will mean that more employees will qualify for disability workplace protections, so they could see more requests for accommodations.

The ADA defines disability as “an impairment that substantially restricts a “major life activity,” such as walking, thinking, seeing and hearing. Congress designed the amendments to restore some of the protections initially provided to disabled people under the ADA, believing that a series of U.S. Supreme Court decisions had limited the ADA’s reach, leaving people with ailments such as epilepsy, diabetes, mental illness and HIV-AIDS unprotected from discrimination.

The revised law overturns four Supreme Court decisions that previously restricted many employees with physical and mental illnesses from applying ADA rules to their situations. Warner Norcross & Judd Attorney Robert Chovanec, who specializes in human resources and labor and employment law, said the amendments attempt to clarify the definition of “disability’ under the ADA. In trying to understand what Congress intended when it wrote the law, the high court had construed the term “disability” quite narrowly and held that a person is not disabled if his impairment is controlled by medication or a medical device, Chovanec explained.

“The Supreme Court previously said that a disability had to be severe, had to be permanent or long term, and that in deciding whether someone is disabled, you had to look at them after mitigating measures are taken into account,” Chovanec said. “For example, if I had epilepsy that was controlled by medication, the Supreme Court would have said I was not disabled.”

The amended law prohibits the consideration of mitigating measures. It reaffirms that the disability must affect a major life activity but further broadens the list of activities 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.

Thus, any impairment that “materially restricts” a person from performing any major life activity would constitute a disability under the law.

Furthermore, the revised act states that “major life activities” include immune system activity, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The amended law also will cover episodic conditions and conditions in remission if they substantially limit a major life activity. That’s a major change in the law, Chovanec said. Scott Harrison, human resource director for Thomas Cooley Law School, thinks the changes are a good move by Congress. 

“The problem is, we don’t really know how drastically these things will affect the way the ADA is applied in employment circumstances,” Harrison said. “We won’t know whether or not these changes in the law are really having the effect Congress intended until court cases come up and are decided.” 

Under the current ADA provisions, as well as the amended law, once it’s decided that someone is disabled, an employer has an obligation to try to reasonably accommodate their disability — that is, to change the workplace somehow or spend money so that the disabled person can get the job and do the job he wants, Chovanec explained. The ADA requires that employers engage in what’s called an “interactive process” with an employee or job applicant to find out how the disability affects or would affect his ability to do the job, and what could be done to allow him to be employed successfully. Would it be “reasonable” and sensible for a business to have to spend $100,000 altering its existing workspace to accommodate one individual? That will be for the courts to decide.

“What will happen now is that employers will be even more likely to engage in the interactive process and explore the possibility of reasonable accommodation,” Chovanec said. “The second way it will affect employers is that, unfortunately, the statute is still inherently ambiguous, and what that means is that there has been and will continue to be a lot of litigation against employers.”

He anticipates there will be more disputes about whether or not an employer took sufficient steps to reasonably accommodate a disability.

According to Chovanec, employers who are well advised are already familiar with the reasonable accommodation obligations. He said when the ADA was enacted in the early 1990s, Congress estimated that approximately 43 million Americans had conditions that qualified as disabilities. Under the new standard and the “impairment of a bodily function” component, he doesn’t know how many more people might qualify.  

As Harrison sees it, employers need to really examine their practices, particularly for deciding whether or not a person is disabled, whether or not he needs a reasonable accommodation and what constitutes a reasonable accommodation.  

“The new law is designed to change employers’ thinking about how to address employees or potential employees who present with a disability,” Harrison observed. “Employers have to make sure that there is clearly no way the candidate could perform the essential functions of the job — with or without reasonable accommodations.”

John Sanford, a human resource consultant with AXIOS Inc., doesn’t anticipate the amendments will impact employers much because most employers already make a concerted effort to work with employees to accommodate a wide variety of health and family situations. He thinks that for the most part, most employers just need to be aware that there are some additional restrictions they might need to be more proactive about — asking additional questions, for instance, especially in performance situations. If an employee is struggling, he said, the employer should ask “Why?’”

“I think a lot of times there’s a difference between the performance the employer needs and the performance the employer is getting. I think the change with the ADA is just kind of that next step: Employers need to be a little more concerned about the ‘why’ and finding out whether an individual’s circumstances might require some sort of an accommodation.”

Sanford said at first some might think the ADA changes will be difficult for businesses to comply with. He noted that the U.S. Chamber of Commerce and the Society for Human Resources supported the bulk of the changes because they provide more equal footing for people with a variety of disabilities that might not be apparent.

“I think for the most part, the changes are positive,” Sanford commented. “I think that most companies — if they work and live within the spirit of the ADA — won’t have any struggles with these changes.”

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