The ADA Amendments Act is changing the landscape for disabled Americans. How will it affect your company?
When the Americans with Disabilities Act (ADA) was signed into law in 1990, it marked the beginning of a bright new day for people with disabilities in the world of work by changing the landscape of labor and employment law. Twenty years later, the terrain is shifting once again. This time the impetus is a set of new amendments.
Impetus for Change
The ADA Amendments Act of 2008 (ADAAA) was created to clarify those aspects of the ADA that Congress felt were not properly interpreted in the courts. Arguments of whether an employee was, in fact, disabled had become the primary focus rather than ensuring that appropriate accommodations were made for disabled employees.
“The ADAAA is unique in that it was a very carefully and extensively researched and negotiated law,” explains Amy Elizabeth Loggins, corporate counsel for Crawford and Company, an international insurance services firm based in Atlanta. Loggins, who drafted and submitted comments to the U.S. Equal Employment Opportunity Commission (EEOC) regarding the proposed regulations on behalf of the Association of Corporate Counsel, says that members of the disability, business and education communities were all involved in shaping the legislation. “The act resulted in a balance of interests and concerns, and each word that was omitted or added was carefully negotiated,” she says. “Congress created a balance that allowed the ADAAA to pass with high levels of bipartisan support.”
On September 28, 2008, the ADAAA was signed into law by George W. Bush. It went into effect on January 1, 2009. Several key changes are as follows:
- The term “substantially limits” is not as high a standard as it had been.
- A lower level of impairment is required to meet the definition.
- Beneficial effects of mitigating measures, with the exception of ordinary eyeglasses and contact lenses, are no longer allowed to be considered.
- The definition of “major life activities” has been expanded to include bodily functions and functions such as thinking and communicating.
- Only one affected major life activity is required to meet the standard.
- Conditions that are episodic or in remission should be considered as they are when the condition is in an active state.
The intentions of Congress were made clear in the ADAAA. More people will (and should have been) protected by the original ADA. Employers must provide reasonable accommodations. Portions of the EEOC’s ADA regulations were rejected. Almost 17 years of case law and interpretations were overturned to reflect the new, broader definition of “disabled.”
“This shift means that there will be more accommodations made in the workplace, including job restructuring, leave, and modified work schedules,” explains Hinton Lucas, the vice president and assistant general counsel for DuPont. “It also means that employers are revising their policies and supplementing their training of human resources representatives to make sure that they are in compliance with the ADAAA. On the litigation front, motions for summary judgment on disability claims will become more difficult to win, though certainly not impossible.”
Preparing for Impact
The long-term impact of the ADAAA has yet to be seen. An important step will be when the EEOC, which is the enforcement agency for the act, issues its final regulation. In the meantime, in-house counsel and labor and employment lawyers have been busy helping their clients make significant changes to prevent discrimination.
“We have to be more diligent and thoughtful,” says Michele C. Meyer-Shipp, vice president and corporate counsel for Prudential Financial, Inc. “Before it was a little bit clearer to define. Now the line is blurred. Just about anybody can raise the claim that they have a disability.”
It’s more important than ever for companies to recognize issues as they arise and take appropriate steps to ensure that they are in compliance. What begins at the top with the review of policies and procedures, must be carried out throughout each layer of an organization, from revision of handbooks and employee manuals to the training of employees.
“Employers should train and educate human resources managers and other decision-makers about the new definition of disability,” notes Lucas. Because the threshold for disabilities is now lower, he says employees have more opportunity to request accommodations and may seek them for conditions that may not have been considered a disability prior to the ADAAA. If companies do not act accordingly, they face a greater potential for litigation, he adds.
Labor and employment attorneys have begun to urge employers to take anything that could be interpreted as a request for reasonable accommodations seriously. Engaging an employee in an interactive process, they say, is crucial. For some companies, this means referring an employee to a medical accommodations team; for others it is talking to a human resources representative. Managers must understand the policies, recognize the signals and know whom to contact should a situation emerge.
Meyer-Shipp advises employers to help managers recognize certain signals and identify buzzwords that employees use. “They may not be making a specific request; it may just be a generic conversation, like ‘I’ve been having headaches and I can’t get up in the morning.’ At that point, the manager needs to be ready to refer this person,” she says.
Treading in Non Liquet
Even though the ADAAA was intended to increase clarity on who employers must consider as being disabled, there are several points that labor and employment attorneys view as gray areas that may be difficult for employers to manage.
One such area surrounds major life activities. In order to be covered under the disabled law, a person must have an impairment that substantially limits a major life activity, Loggins explains. “The EEOC’s proposed regulations have added ‘interacting with others’ to the list of major life activities. So if a person is substantially limited in the major activity of interacting with others, she may be covered by the law. Employees envision this one being difficult to manage.”
“Breathing, thinking, concentrating, communicating are all considered major life activities,” Lucas adds. “Major life activities under the new regulations are so broad now. It’s going to be interesting. The standard is going to be less stringent. This puts employers in the position of looking to provide more expansive and creative reasonable accommodations.”
Mental impairment is another area of concern. Even though it generally qualified as a disability before the amendments, the threshold is now lower. “What if someone has limited intellectual capabilities? What if they have trouble figuring out instructions? Is that a ‘disability?’” Lucas wonders. “If an employee has difficulty making it through a written manual, will companies be required to give oral instructions or bring in a special trainer?”
Also questionable is “regarded as” having a disability. Previously, an employer had to believe an employee had an impairment that substantially limited a major life activity. Now, however, an employee is entitled to protection from discrimination if the employer believes he has any physical or mental impairment.
Meyer-Shipp views this as a proverbial can of worms. She says performance reviews have the potential to be misinterpreted as managers’ perceptions of a disability. For example, if an employee is not meeting performance objectives, can he then establish a claim that his boss perceived him to have a mental impairment? She believes that this is a dicey situation made even more questionable by the ADAAA.
“You can see how these issues are fact specific and can become fuzzy for employers,” says Lucas, noting that the complexities of the new law will likely create ongoing questions.
The immediate impact of the ADAAA can be seen in the upfront work employers have put forth to prevent discrimination claims. There have been significant efforts to rethink and revise policies and procedures, train managers and other decision-makers to recognize potential requests for accommodation, and generate a proactive, interactive process to provide appropriate accommodations. Employers see the potential for litigation and are taking steps to avoid it.
So, has the broadening of definitions led to an uptick in requests for accommodations? Not so far, says Lucas. “The amendments to the ADA may have flown under the radar so far because there have been so many other issues with the new [Obama] administration that have gotten the focus of the labor and employment community,” Lucas continues. “But I think it’s just a matter of time. Nothing in what we do stays below the surface for too long.”DB
Kara Mayer Robinson is a freelance writer based near New York City.
From the September/October 2010 issue of Diversity & The Bar®