Sifting through change Featured

7:00pm EDT January 26, 2009

The start of a new year means change. One big change affecting businesses is the Americans with Disabilities (ADA) Amendments Act, which keeps the three-part basic definition of disability the same, but makes other major changes to the Act.

“Congress’ original intent was for the definition of disability to be construed broadly, but in their handling of cases, courts have narrowed the definition of disability to the point where the Act no longer covers the people Congress originally intended it to cover,” says Megan Kreitner Ouzts, associate with Baker, Donelson, Bearman, Caldwell & Berkowitz PC.

Smart Business spoke with Ouzts about how to deal with the changes and what can happen if businesses are not prepared for them.

What are some of the major differences in the ADAAA?

One of the biggest differences is that the ADAAA overturns the Sutton trilogy of cases, which held that ‘mitigating measures’ that help individuals control or cope with impairments must be considered in determining whether an individual is disabled within the meaning of the ADA. The result of these decisions had been to exclude from the ADA many people, such as those with insulin-controlled diabetes, whom Congress intended to cover. Now, generally speaking, no mitigating measures will be taken into account except ordinary eyeglasses and contacts.

Another big change is that the ADAAA now provides two lists of major life activities, the first of which includes, for the first time, major bodily functions defined as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The second list is different than the ADA’s original list in that it contains not only most of the major life activities previously recognized by the U.S. Equal Employment Opportunity Commission, but it also recognizes several new activities, for example, bending, reading and communicating. The Amendments Act also states specifically that an impairment can be a disability even if episodic or in remission.

How does the ADAAA affect businesses?

More people will qualify as disabled under this Act because Congress has been very clear that the definition will be construed broadly. This means that more employees are going to request accommodations from their employers, who will inevitably find themselves dedicating more resources (financial and administrative) to analyzing and, where appropriate, providing these requests.

Additionally, the ADAAA is going to change how we litigate disability cases because there are going to be fewer threshold cases. By this I mean that, in the past, employers often fought ADA claims by disputing whether a person was ‘disabled’ under the Act. Employers would win cases at the summary judgment phase by taking advantage of the narrow definition of disability. But now, because the definition of disability will be construed so broadly, lawyers will be fighting less about whether plaintiffs are disabled. This will result in a focus shift in litigation. The new battlegrounds will be, for example, whether the employer offered a reasonable accommodation or whether the person could perform the essential functions of his or her job with or without an accommodation.

How should businesses make adjustments?

 

  • Train supervisors to engage in the interactive process and properly document requests for accommodations. Teach them how to handle requests, inform them of the expanded definition of disability, discuss available accommodations, and caution them to expect more administrative legwork.

     

     

  • Make sure your company policies conform to the new law. Consult legal counsel to revise policies and handbooks if needed.

     

     

  • Remember, employers are not required to remove an essential function of a job when providing an accommodation. Revise job descriptions to be sure all essential functions of a job are included, and determine whether those already listed are truly essential.

     

     

  • Pay attention. Changes may still occur as the EEOC promulgates new rules interpreting the ADAAA. It is also likely that the Department of Justice, which issues regulations for the ADA, will promulgate new regulations and hold a public comment period to address any proposed new language.

 

What else should businesses know about the ADAAA?

If a company is not engaging in the interactive process in good faith and chooses not to properly document that process, it’s going to open itself up to liability. Documentation will be critical, as will obtaining buy-in of supervisors and human resources professionals who handle requests. Document all aspects of accommodation requests, the process with the employees and, of course, which accommodation was eventually chosen and why.

Companies should not feel as if they have to offer every accommodation that is requested. Under the ADAAA, employers are under no obligation to provide employees with the exact accommodation requested or the ‘best’ accommodation. They need only provide a ‘reasonable’ accommodation, which means, at the very minimum, one that does not cause the employer undue hardship.

MEGAN KREITNER OUZTS is an associate with Baker, Donelson, Bearman, Caldwell & Berkowitz PC. Reach her at (678) 406-8736 or mouzts@bakerdonelson.com.