• New ADA Provisions Tip Balance In Favor of Employees
  • July 8, 2009 | Author: Matthew A. Rich
  • Law Firm: Katz, Teller, Brant & Hild, [incorporation phrase format]A Legal Professional Association - Cincinnati Office
  • Just when you might have gotten comfortable with the Americans with Disabilities Act, there are amendments that tip the balance in favor of employees in a number of ways. Because this could have a real impact on how your business handles disability claims, we have outlined a few of the highlights below. 

    The Americans with Disabilities Amendments Act (“ADAAA”) went into effect on January 1, 2009. Here are some of the major changes that may affect you:
     
    Significant Expansion in the Definition of Who Will Be Considered Disabled:
    The ADAAA has clarified that employers determining whether an employee is disabled cannot consider whether an employee’s condition may be improved or eliminated with so-called “mitigating measures” (hearing aids, medication, prosthetic devices and other tools to manage/treat conditions). The only exception is for visual aids such as glasses and contact lenses. What this means for you is that an employee who has a condition that would qualify as a disability, but appears healthy or able due to use of “mitigating measures,” is still disabled within the meaning of the ADA.
     
    Further, the ADAAA has broadened the meaning of key terms in the definition of disabled to bring more employees within the definition. An individual is disabled within the meaning of the ADA when he or she is substantially limited in one or more major life activities or regarded as such. The ADAAA states that the Supreme Court got it wrong when the Court said “substantially limits” means “prevents or significantly restricts,” and it has asked the EEOC to issue a more lenient definition. Further, it has provided a very expansive list of major life activities, which now include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, and the operation of major bodily functions, such as functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.” These changes will make it easier for an employee to meet the definition of disabled under the ADA.
     
    Increased Risk of “Regarded as Disabled” Claims:
    Under the ADAAA, an employee subject to an adverse employment action (firing, demotion or even discipline) need only prove that he or she was discriminated against on the basis of an actual or perceived physical or mental impairment to win on an ADA claim against his or her employer. An employee no longer has to prove that the impairment actually limits or is perceived to limit a major life activity.
     
    Tips the Balance In Favor of Employees:
    One of the major purposes of the ADAAA is to correct how the courts, most notably the Supreme Court, have interpreted the ADA. The ADAAA makes it clear that courts must consider the purpose of the ADA – to help disabled employees – in rendering their decisions. This will make it much more likely that courts will issue decisions favorable to employees.
     
    Given these sweeping changes, employers will need to carefully evaluate ADA compliance in all areas, including hiring, medical testing, job descriptions, accommodation, leave and termination. Employers should also consider instituting a formalized process for responding to any request for job changes that may relate to a health condition, so that they can ensure these issues are handled appropriately. If you have any specific questions about the ADA or ADAAA, feel free to contact us.