ADA Amendments Raise Challenge For Employers

(Originally published in The Business Journal)

New amendments to the landmark Americans with Disabilities Act will dramatically expand the population considered to be “disabled” and thus increase the burden on employers to provide reasonable accommodations in the workplace.

Here’s a look four of the most important changes driven by the amendments, scheduled to take effect January 1.

Substantial Limits

According to the original ADA and existing case law, a disability must be severe enough to “substantially limit” a person in more than one “major life activity” in order for an employer to be required to provide reasonable accommodations.

However, the new amendments provide that an “impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.”

This would appear to expand the universe of conditions that “substantially limit” an individual and thus call for workplace accommodations. 

Life Activities and Bodily Functions

The new amendments will also lengthen the list of “major life activities” that are used to determine whether an employee is disabled for purposes of workplace accommodations under the Act.  

The current list includes “caring for oneself, performing manual tasks, seeing, hearing, walking, speaking, breathing, learning, and working.”

The amendments preserve these activities and add “eating, sleeping, … standing, lifting, bending, … reading, concentrating, thinking” and “communicating.”

The amendments also add an entirely new list of “major bodily functions” that factor into whether a person is considered disabled. This list includes “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

If an individual has a “physical or mental impairment” that “substantially limits” any of these “major life activities” or “major bodily functions,” then employers must consider that individual to be disabled and make the appropriate accommodations.

Mitigating Measures

The Supreme Court has held for years that determining whether an individual is disabled requires consideration of any so-called “mitigating measures.”

For example, although epilepsy can be disabling, seizures can be controlled with medication and the courts have recognized the impact of such measures.

Under the amended law, however, individuals would be considered disabled – and deserving of reasonable accommodations at work – even if mitigating measures like medication are available.

There are some specific exceptions. For example, a person with nearsightedness that can be corrected with normal eyeglasses or contact lenses would not be considered disabled under the amended Act.

“Regarded As.”

The amended ADA also expands the definition of individuals who are not actually disabled but who are “regarded as” disabled, and thus eligible for workplace accommodations.

Under the original ADA, most courts held that, to be “regarded as” disabled, the employer had to perceive that the individual was substantially limited in a major life activity. If the employer perceived only that the individual was “impaired” but not “substantially limited,” there was no “regarded as” claim.

With the amendments, a person is considered to be “regarded as” disabled even if the employer perceives only an “impairment.” However, this provision appears to exclude the perception of impairments that are expected to last six months or less.

Ramifications

The amendments will make it harder for employers to take the position that a given individual is not “disabled” within the meaning of the Act. This could mean more reasonable accommodation requests, discrimination charges and lawsuits.

Employers should ensure that their human resources and functional management are up to date on their legal obligations.

Some employers have not offered ADA training in years because of the relatively restrictive view that courts have taken of the ADA. Such employers should offer comprehensive training on the ADA requirements and on ways to effectively handle requests for accommodations.

In addition, employers who use medical criteria in hiring decisions should have their criteria reviewed in light of the amended Act’s more liberal requirements regarding who is “disabled” and who is “regarded as” having a disability.

Codjoe can be reached at ccodjoe@hhmlaw.com or at (330) 744-1111.