• Accommodating the ADA Amendments Act
  • November 1, 2008 | Author: Patrick L. Lail
  • Law Firm: Elarbee, Thompson, Sapp & Wilson, LLP - Atlanta Office
  • The ADA Amendments Act (ADAAA), which has been passed by both houses of Congress with an effective date of January 1, 2009 and which President Bush has signed, will substantially broaden the scope of those considered “disabled.” This means that employers need to hone their reasonable accommodation skills and processes because more individuals will be entitled to accommodation.

    More people will be disabled

    Although the definition of disability remains “a physical or mental impairment that substantially limits one or more major life activities,” the application of that language is changed under the ADAAA:

    1. Under current law, courts consider mitigating measures such as medications and assistive devices in determining disability. Under the ADAAA, no ameliorative effects may be considered except for eyeglasses and contact lenses.

    2. Under current law, the list of “major life activities” is limited by regulation and some court interpretations. Under the ADAAA, the definition of “major life activities” will include many new items (in italics): caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activities will also include normal functioning of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

    3. Finally, under the ADAAA, an impairment that is episodic or in remission is a disability if it substantially limits a major life activity when active.

    Accommodating the Disabled

    With more people recognized as “disabled,” more people may be entitled to reasonable accommodation. The following steps are good general measures in determining an effective reasonable accommodation:

    1. Document the accommodation requested by the employee and why it was requested.

    2. Document other possible accommodations that could address the situation, such as job restructuring, reallocation of non-essential functions, assistance with non-essential functions, reassignment of the employee to a vacant position, and unpaid leave.

    3. Document an interactive process with the employee in which the pros and cons of all possible accommodations are discussed.

    4. Document the reasonable accommodation implemented and why it was chosen among the possible choices. Remember that an employer’s duty is to provide a reasonable accommodation, not necessarily the employee’s requested accommodation or the “best,” most technically sophisticated, accommodation.