On Sept. 25, President Bush signed the ADA Amendments Act of 2008, providing greater protection to disabled employees under the ADA. The amendments, which passed the House and Senate with broad bipartisan support, dramatically expand the class of people who are entitled to protection under the ADA.
What the ADA amendments change
The amendments overrule a number of Supreme Court decisions that narrowly interpreted the ADA. Specifically, the ADA Amendments Act of 2008:
• Redefines the term “substantially limits.” In determining whether a person’s impairment constitutes a disability, the term “substantially limits” has been modified to mean “materially restricts.” That is, if the person has more than a nominal restriction, but less than a severe restriction on a major life activity, the individual will be considered disabled for purposes of the ADA. This change lowers the threshold for employees to establish that they are entitled to ADA protection.
• Expands the list of major life activities. The act provides a nonexclusive list of major life activities, which includes reading, learning, concentrating, thinking, communicating, working and major bodily functions (such as the immune system, bladder, reproductive system, etc.). This may further broaden the scope of impairments for which employers must provide accommodations.
• Eliminates most mitigating measures as consideration. Employers must now determine whether an individual has a disability without taking into account any mitigating measures (such as medication, medical devices or additional aids) that the individual uses to decrease the severity of the impairment.
The only mitigating measure that can be considered is the use of prescription eyeglasses or contact lenses. In other words, if glasses or contact lenses can correct an employee’s vision, that employee is not disabled under the definition of the act.
• Covers episodic conditions and those that are in remission. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Examples of such conditions include cancer, epilepsy, diabetes, cerebral palsy and muscular dystrophy.
• Expands the definition of “regarded as.” Under the amendments, an individual is “regarded as” disabled if he or she establishes that he or she was discriminated against because of an actual or perceived physical or mental impairment. The regarded-as prong does not apply to individuals with minor or transitory impairments with an actual or expected duration of less than six months.
• Does not require accommodations for employees who are “regarded as” disabled. The amendment clarifies that employers are not required to provide accommodations for individuals who are regarded as having a disability.
What the changes mean for employers
The amendments are likely to significantly expand the number of employees who are entitled to protection under the ADA. Thus, the amendments also likely expand the duty of employers to make reasonable accommodations for employees who were not previously protected under the Act.
Employers should consider taking the following steps to prepare for Jan. 1, 2009, when the law will go into effect:
- Review current policies and procedures to make sure they will be in compliance with the revisions.
- Engage in an interactive accommodations process with disabled employees to identify reasonable measures that will allow them to perform the essential functions of their jobs. Disregard any medications, aids or other mitigating measures the employee may use to lessen the effects of his or her disability.
- Train supervisors on the definition of “regarded as” disabled. The goal: to avoid creating protection for individuals whom the employer merely perceives to be disabled, even if they actually are not.
- Consult with an employment attorney before taking any action involving disabled employees that may trigger ADA issues.
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