Congress has lowered the standard for plaintiffs and employees to claim they are disabled under the Americans with Disabilities Act (“ADA”).  Both houses have now approved the ADA Amendments Act.  Assuming President Bush signs it, as he is expected to do, the Act is scheduled to go into effect January 1, 2009.

The stated purpose of the Act is to greatly expand the number of individuals covered by the ADA.  The result is that employees with back problems, lifting restrictions, conditions corrected by medication (diabetes, epilepsy) and a host of other impairments may now be protected by the ADA.  Employers will have a duty to accommodate these “disabilities” and will likely see increased litigation under the ADA.

Over the years, numerous ADA lawsuits have been dismissed because the plaintiff employee was not substantially limited in a major life activity (and, therefore, not disabled) as those terms had been defined by the courts.  The Supreme Court in particular has handed down a number of victories for employers, limiting the scope of disability under the ADA.

The ADA Amendments Act reverses a number of these employer victories. 

The Changes Made By The ADA Amendments Act

Although an impairment must still substantially limit a major life activity to qualify as a disability, Congress intends that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”  Some of the significant changes under the new law include:

• The Act expands the definition of “major life activities.”  Major life activities had been limited to those activities that are of central importance to daily life.  The Act now defines major life activities to specifically include such things as standing, lifting, bending, reading and concentrating, along with performing manual tasks, thinking, working, caring for oneself, seeing, hearing, eating, sleeping, walking, speaking, breathing, learning, and communicating.
• The Act also defines major life activities to include the operation of any major bodily function, including the immune system, normal cell growth, digestive, bowel, bladder, neurological brain, respiratory, circulatory, endocrine and reproductive functions.
• Under the Act, an individual may now be disabled even if the effects of the individual’s impairment are corrected by mitigating measures such as medication, prosthetics, hearing aids, medical equipment, learned behavioral or adaptive neurological modifications, assistive technology, or accommodations.  The Act requires that the analysis of whether an impairment substantially limits a major life activity should be made without regard to such mitigating measures.  In other words, an individual will be considered disabled if the individual is substantially limited in a major life activity in his unmedicated state even though the limitations may be corrected by medication.
• An individual may also now be disabled even if the individual’s impairment or condition does not currently substantially limit a major life activity.  Under the Act, an impairment that is episodic or in remission will be considered a disability if, when active, it would substantially limit a major life activity.
• The Act also expands the number of individuals who can claim they are regarded as disabled.  Under the Act, individuals may be regarded as disabled if they are discriminated against because of an actual or perceived physical or mental impairment regardless of whether the impairment limits or is perceived to limit a major life activity (so long as the impairment is not transitory -- lasting less than 6 months -- or “minor”).  Although the amendments make clear that an employer is not required to provide reasonable accommodation for an individual who is only “regarded as” disabled, the revised definition opens the door for employees who have impairments that do not amount to disabilities to claim discrimination.
• Finally, although the Act provides that the need for normal eyeglasses does not make one disabled, the Act prohibits employers from using selection criteria or employment tests based on an employee’s uncorrected vision unless the test is job related for the particular position and consistent with business necessity.

What Should Employers Do?

Employers will need to re evaluate the manner in which they determine whether an employee qualifies for an accommodation or other protections under the ADA. Employees who may not have been disabled under the prior law may now have protections afforded by the ADA. 

Under the ADA, employers have a duty to reasonably accommodate their employee’s disabilities.  Reasonable accommodation can include modifying work schedules and modifying job duties.  The ADA does not require employers to remove essential functions of a job in order to accommodate an employee with a disability.  Under the amendments, disability discrimination claims will now likely hinge on whether a particular duty is an essential function and whether the employer has offered a reasonable accommodation, instead of whether an individual is disabled.  Before these issues are raised, employers should update their job descriptions to ensure that the essential functions of each of their positions are accurately described.

Taft's Labor & Employment attorneys are available to assist employers with proactive solutions to this change in disability discrimination law.  They will be discussing this new law at upcoming seminars, including their Annual Labor & Employment Law Update in Cincinnati on December 4, 2008