Holloway Human Resource Consulting

On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).  Employers with 15 or more employees must comply with the federalADA law and the new amendments, and employers with six or more employees must continue to comply with Oregon´s disability law.  Employers covered by both state and federal laws (those with 15 or more employees) must apply the standard most beneficial to the employee. It is unknown at this point whether the Oregon legislature will adopt any of the new federal changes during the 2009 session.

The ADA Amendments Act is effective on January 1, 2009.

The Act makes important changes to the definition of the term "disability" by rejecting several Supreme Court decisions and portions of the EEOC's ADA regulations.  The Amendments Act expands the protections of the original ADA to include more individuals with less severe impairments, and many expect this will result in more discrimination claims filed under the ADA. 

The Act retains the ADA's basic definition of a disability as:

• Having a physical or mental impairment that substantially limits one or more major life activities;
• Having a record of such an impairment; or
• Being regarded as having such an impairment.

However, the ADAAA has expanded the definition of "major life activities" to include:

• Caring for oneself
• Performing manual tasks
• Seeing
• Hearing
• Eating
• Sleeping
• Walking
• Standing
• Lifting
• Bending
• Speaking
• Breathing
• Learning
• Reading
• Concentrating
• Thinking
• Communicating
• Working

The ADAAA also adds a new major life activity category – "major bodily functions", which includes, but is not limited to:

• Functions of the immune system
• Cell growth
• Digestive, bladder, and bowel functions
• Neurological and brain functions
• Respiratory and circulatory functions
• Endocrine functions
• Reproductive functions

Other significant elements of the ADAAA include the following:

The determination of whether an impairment substantially limits a major life activity must be made without regard to the use of mitigating measures such as medication, medical equipment, prosthetics, hearing aids, mobility devices, oxygen equipment, etc.  Simply put, if an employee's condition would qualify without such aids, consider the person to have a protected disability.

There is one exception, however, for ordinary eyeglasses and contact lenses.

·         An impairment that is "episodic or in remission" is a disability even when inactive "if it would substantially limit a major life activity when active." Examples may include cancer, epilepsy, and post-traumatic stress disorder.

·        An individual subjected to an action prohibited by the ADA (for example, failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is minor and "transitory" (actual or expected duration of the impairment is 6 months or less).

·         Employees without disabilities cannot sue for "reverse discrimination" under ADA.

Broad Coverage

The ADAAA states that "the definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted under the terms of the Act."  In other words, it is clear that the changes in this Act will benefit employees by making it more likely that they will now qualify for reasonable accommodations and the ADA's protections.

Additionally, the ADAAA states that the intent of these changes is that employers stop engaging in "extensive analysis" to determine what constitutes a disability under the law, and focus instead on complying with their obligation not to discriminate and to provide reasonable accommodations to individuals who are otherwise qualified to do a job.

What To Do:

The ADAAA becomes effective January 1, 2009.  Here are some practical steps and actions for employers to take:

• Review your employment policies on disabilities and reasonable accommodations.  Most employers have brief policies that will not need to be changed in light of the new law, but employers that have lengthy, detailed policies that include definitions of what constitutes a disability should consult with outside professionals about whether any changes are necessary.
• Review job descriptions to ensure that elements of the job listed as essential functions are truly job-related and consistent with business necessity.
• Ensure there is a formalized process in place for addressing requests for reasonable accommodations.
• Educate supervisors and managers about the ADAAA changes and the importance of engaging in interactive discussions with employees potentially covered by the Act.
• Encourage supervisors and managers to consult with Human Resources or outside professionals whenever an employee requests an accommodation, if there is any question as to the validity of the request.  Stress that they should never immediately refuse the request or retaliate in any way against the individual for making the request.
• Reconsider past accommodation requests from current employees who were denied accommodation because it was determined that the employee's impairment did not satisfy the ADA's definition of a disability.
• When in a position to take adverse action or not accommodate an employee with a medical condition, be sure to have well drafted documentation of the legitimate, non-discriminatory reason for the action and the interactive steps taken to arrive at the decision.

In a statement on their website the EEOC says it will be evaluating the impact of these changes on its enforcement guidance and other publications addressing the ADA.

While many of the changes in the new Act will change how we interpret the law going forward, good common-sense practices such as promoting a respectful workplace and being open-minded and thoughtful when employees request reasonable accommodations will continue to help employers comply with the law and avoid liability.

It is also important to remember that a key organizational goal is to recruit and hire the best employees possible.  The ADAAA doesn’t require employers to hire unqualified candidates, it requires all employers to do what most good employers do already:  reduce the barriers to success.

Holloway Consulting encourages all employers who must comply with the ADAAA to train all managers and supervisors on an annual basis.  Onsite training, policy updates, job descriptions review and other related services are available, including telephone and web conferencing.

This article is a brief and general overview of the new law.  If you have any questions about how the ADA Amendments Act may effect your organization directly, please give me a call.

To read the notice of ADA Amendments Act on the EEOC website click here   http://www.eeoc.gov/types/ada.html

To read the amendments to the Act click here http://www.access-board.gov/about/laws/ada-amendments.htm

To read the full text of the ADA, as amended, click here:  http://www.access-board.gov/about/laws/ADA-amended.htm