The ADA Amendments Act, or the ADAAA, was signed into law by President Bush and takes effect on January 1, 2009. This Act makes significant changes to the Americans with Disabilities Act of 1990, which will pose challenges to employers in avoiding and defending claims of disability discrimination.
“The congressional intent conveyed in the ADAAA is that courts should focus on whether covered employers are complying with their obligations under the Act, rather than on whether an individual’s impairment constitutes a covered disability,” says Patricia Diulus-Myers, a partner and a member of Jackson Lewis LLP’s Disability, Leave and Health Management Practice Group.
Smart Business spoke with Diulus-Myers about the new law’s implications.
What’s so new about the ADAAA?
The ADAA is a reaction by Congress to the perception that the judiciary has too narrowly construed the scope of an individual’s access to protection under the ADA, thus limiting rights of the disabled. Historically, employers have won more than 95 percent of ADA lawsuits, mainly because of the narrow construction courts have given to the definition of a ‘disability.’ In referencing several landmark ADA-related Supreme Court decisions, the Act’s expressed purpose is to overturn those decisions and to have the definition of ‘disability’ interpreted more broadly.
What should employers do?
Companies will face more challenging ADA issues and should prepare to defend more complex cases in this area. Now is a good time to review existing procedures for compliance at every stage of employment, including hiring, medical testing, accommodations, leaves and termination.
Those dealing with leave and health management issues should be well aware of the amendments and have processes in place to address requests for accommodation. Training in this area will be critical.
Other considerations include:
- When determining who is covered under leave management policies and if accommodations should be provided or if they pose undue hardships, be prepared to defend those judgments.
- Evaluate workplace risks according to the ‘direct threat’ standard under the ADA.
- Essential job functions, performance and conduct standards should be scrutinized as to their job-relatedness.
- Documentation and record keeping will be very important in order to defend these decisions in a court of law.
How will legal decisions be affected under the ADAAA?
It will be easier for ADA plaintiffs to prove that they are disabled. Prior to the amendments, mitigating measures such as prostheses and medication could be considered in this analysis, but the ADAAA has rejected such consideration. Whether someone is ‘regarded as’ being disabled, is another factor under the ADA, and the amendments have made it easier for plaintiffs here also. A plaintiff can prevail in showing he or she is ‘regarded as’ having a disability, whether or not the physical or mental impairment actually limits or is perceived to limit a major life activity.
Whether more plaintiffs will prevail at trial remains to be seen. Courts will be less likely to rule in an employer’s favor, both on summary judgment before trial, or by directing a verdict for the employer at trial. Thus, juries
will be deciding these cases more frequently.
Can you cite an example of how the new law can impact past court decisions?
Let’s take a plaintiff who has a limp. Under the old act, the limp alone probably would not constitute a disability. Under the amendments, courts are cautioned not to give extensive analysis to the alleged disability, so a limp alone may constitute a disability. And, because the limp may be related to a chronic condition that lasts more than six months, the plaintiff more easily can prove a ‘regarded as’ disabled claim. In such a case, the new act does not require a showing that the alleged impairment is even perceived to limit a major life activity. Luckily, employers will not be required to reasonably accommodate individuals who are only ‘regarded as’ disabled. This is just one of many conditions to which courts will be giving closer scrutiny.
How can employers assure that their key personnel are versed on the law?
Both the ADA and Family and Medical Leave Act are very complex statutes which require familiarity, education and experience. No one should tackle these issues without a firm knowledge base. Some law firms offer ‘preventive lawyering’ through training programs for key legal and human resources personnel, and educational programs on cutting-edge workplace laws. On-going counseling and legal updates are also recommended to remain current on leave management developments. One resource available to employers, particularly for attendance issues, is the EEOC’s new ADA Guidance on Performance and Conduct Standards.
Do you anticipate more ADA litigation in the coming months and years?
Yes. Plaintiffs’ attorneys will welcome the amendments, since the prior hurdle of proving a covered disability won’t be a significant focus of courts. In the past, in view of the 95 percent failure rate, these cases were avoided. Now, they’ll be more attractive.
PATRICIA DIULUS-MYERS is a partner and a member of Jackson Lewis LLP’s Disability, Leave and Health Management Practice Group. Reach her at (412) 232-0180 or DiulusMP@jacksonlewis.com.