How employers should prepare for changes required by the Amendments Act to the ADA Featured

8:01pm EDT July 31, 2011
How employers should prepare for changes required by the Amendments Act to the ADA

New rules under the Americans with Disabilities Act Amendments Act (ADAAA) have significantly changed the workplace for dealing with individuals with disabilities.

The Amendments Act was enacted in 2008 to adopt a broader interpretation of the definition of ‘disability.’ Then, on March 25, 2011, the U.S. Equal Employment Opportunity Commission issued final regulations to the Amendments Act that expanded the definition even further.

“Employers should prepare for more ADA agency charges and complaints, as well as more complicated and costly litigation,” says Donna Geary, partner with Jackson Lewis LLP. “Employers must be ready to defend that their employment actions were legitimate and nondiscriminatory.”

Smart Business spoke with Geary about how the new regulations will affect employers and what litigation to expect in the future.

How will the changes impact ADA litigation?

The EEOC anticipates that the ADAAA, including its broader interpretation of ‘disability’ under the act, will result in an increase in the number of EEOC charges and lawsuits filed. In particular, the commission anticipates that more individuals with disabilities might file charges.

More employees are going to be covered by the Amendments Act than were previously covered by the old ADA. Before, if an employee went to human resources and said, ‘I have a back problem today,’ the HR people might think, ‘That does not sound like a disability to me.’ That was usually the end of it, because it was somewhat difficult to qualify as an individual with a disability under the ADA.

Now, it is much easier. Congress did not change the definition of disability; the definition is exactly the same. The way it is interpreted has changed.

How has the interpretation changed?

Previously, to consider if an individual was disabled, the individual was viewed in his or her corrected state. For example, if an employee has a leg amputation below the knee and has a prosthesis permitting him or her to easily walk, then that person was not substantially limited in a major life activity and was not considered disabled.

Under the amended ADA, Congress requires that the individual is now viewed in an uncorrected state. So if you take away the prosthesis, that person cannot walk and has a substantial limitation of a major life activity — walking — and is most likely considered disabled under the law.

As a result, many more employees will now be considered as disabled. Before, those people could not get past the initial part of the definition of disability. Now, most individuals with a medical, physical, or mental impairment will get past it. As a result, most claims will hinge on the ‘reasonable accommodation’ part of the ADA. Employers have to determine if there is a reasonable accommodation or job modification that permits the employee to do the job without causing the employer an undue hardship. Employers rarely got to that before, because most employees could not meet the definition of disability.

How will these regulations impact employers?

Employers should prepare for a large number of ‘reasonable accommodation’ cases, in which an employee must have an actual disability or record of a disability that substantially limits one or more major life activities.

If an employee has a doctor’s note saying he or she cannot lift heavy weight and lifting is part of the job, you might think the employee cannot do the job anymore. That is not true.

The employer needs to engage in what is termed the ‘interactive process.’ It is a legal requirement to engage in this process with the employee and the employee’s physician to determine if there is anything that can be done to modify the job so the employee can do it. If the employer cannot modify that job, are there other jobs the employee is qualified for where lifting heavy weight is not necessary?

It does not mean we have to do what the employee wants. What it means is the employer needs to review the situation and determine if there is something that can be done that does not cause the employer an ‘undue hardship.’

If employers do not engage in the interactive process, they will be found in violation of the statute. But as an employer, you do not have to lower quality or quantity standards.

For example, if a salesperson who sold 1,000 units last year only sold 500 units this year because of multiple sclerosis, and you do not want to set 500 units as the new standard, you do not have to make that accommodation. But you do have to look for a way to help that salesperson get to 1,000 units.

Where is the line between reasonable accommodations and undue hardship?

A reasonable accommodation can include changing the work schedule. If an employee has trouble coming in at 7 a.m. because he or she is groggy or stiff because of a medication, that person could come in at 9 a.m. instead. The employee still works eight hours; he or she just starts later. However, if the employee who wants to start at 9 a.m. works on a manufacturing line and wants the entire line to start at 9 a.m., that is most likely an undue hardship.

How do the final regulations impact day-to-day management of employees with injuries and illnesses?

Anyone with an impairment should be presumed to be protected by the new ADA. Every adverse employment action related to an individual’s physical or mental condition should be presumed to be a potential ADA case. As the new regulations have made it easier to qualify an employee as disabled, employers should focus their efforts on showing that they made the proper employment decisions, which will typically require that they engage in the interactive process.

Donna Geary is a partner with Jackson Lewis LLP. Reach her at (412) 232-0154 or gearyd@jacksonlewis.com.