• The ADAAA - Four Years After Its Enactment, Just How Broad Has This Become?
  • September 7, 2012 | Authors: Seth T. Ford; Lindsay S. Marks
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • ADAAA Background

    Three and a half years ago, Congress passed the Americans With Disabilities Amendments Act (“ADAAA”) in an effort to further protect the rights of individuals with disabilities. The ADAAA expanded the definition of “disability” under the Americans with Disabilities Act (“ADA”) and created a greater responsibility for employers to provide reasonable accommodations to qualified individuals with disabilities. In March 2011, the Equal Employment Opportunity Commission (“EEOC”) issued regulations interpreting the new ADAAA. Under these regulations, which became effective in May 2011, it is more difficult than ever before for an employer to successfully assert that a physical or mental impairment is not a disability, and employers must instead focus on whether they are required to make reasonable accommodations for disabled employees in order that they may perform their essential job functions. Although there are few published case opinions to date in which courts have actually applied the new ADAAA and EEOC regulations, the available case law makes clear that an individualized assessment of each employee’s condition and reasonable accommodation request is critical.

    Recent Court Decisions Interpreting the Broad Definition of “Disability” Under the ADAAA

    The Seventh Circuit Court of Appeals has issued two holdings in the past year interpreting the broader provisions of the ADAAA. In 2011, the Seventh Circuit concluded that a bridge worker’s acrophobia (fear of heights) was a disability. Accordingly, the Court held that a reasonable jury could find that the bridge worker’s request that other employees substitute for him when a task required working above 25 feet in an exposed or extreme position was a reasonable accommodation. In July 2012, the Seventh Circuit upheld a jury verdict for nearly $2 million, which was based on a finding that a teacher with seasonal affective disorder was a qualified individual with a disability. In that case, the teacher made multiple requests for a room with natural light, and the Court found that the jury reasonably determined that the school district failed to accommodate her when it failed to move her to a classroom with windows.

    In the past six months, federal district courts have held that the following impairments constitute disabilities under the ADAAA: (1) arthritis, hernia, and rotator cuff issues; (2) a high-risk pregnancy with complications that led to an emergency room admission; (3) asthma and high blood pressure; (4) a knee injury which prevented squatting, kneeling, running, jumping, and climbing, although the employee could perform restricted activities by sitting on his hip or bending at the waist, rather than kneeling; and (5) an ankle injury making the employee unable to stand for more than an hour, but who could work with a special boot. Several of these courts have even stated that such impairments likely would not have been considered “disabilities” under the pre-2009 ADA.

    While Not Every Impairment Is a Disability, Employers Will Often Need to Assume Disability and Attempt Reasonable Accommodation

    Although the ADAAA drastically expanded the definition of “disability,” courts have indicated that there is no impairment that will always be considered a disability. Late last year, the Tenth Circuit Court of Appeals held that an employee with migraine headaches was not disabled under the ADAAA, but was careful to clarify that it was not stating that migraines can never be a disability. The Court found that the migraines constituted an impairment, but that they did not substantially limit any major life activities. Additionally, some federal district courts have confirmed that not every impairment is a disability. One court held that an employee with back pain resulting from a car wreck was not disabled under the ADAAA, as the condition was a temporary non-chronic impairment of short duration. Moreover, employers aren’t required to provide each and every accommodation that is requested (such as a different supervisor, more preferable shift, or more desirable work location), only a reasonable one.

    Given the Tenth Circuit’s ruling and recent district court decisions, employers should not be hesitant to require employees to provide evidence that they have a disability, but they must be careful in doing so. Assessing reasonable accommodation requests and determining whether an employee is “disabled” requires an individual analysis. Under the stricter ADAAA guidelines, employers should be cautious and err on the side of considering most impairments to be disabilities and attempting accommodation.

    EEOC Perspective on Leave and Attendance Policies

    In addition to applying a broader definition of “disability,” the EEOC has also expressed its preference for broader disability protection, specifically in leave and attendance policies. In the spring and summer of 2012, the EEOC entered into a number of settlements of ADAAA claims regarding exceptions to long-standing employer policies. These settlements have required monetary payments, revised postings, and ADA training because the following policies and practices were considered discriminatory: requiring employees to return from medical leave with no restrictions unless their conditions were related to on-the-job injuries; requiring employees on leave to re-apply for vacant jobs upon returning from leave; counting disability-related absences as absences under a no-fault attendance policy, thus resulting in termination; and withdrawing an offer when an employee failed a pre-employment drug screen due to epilepsy medication. Under the EEOC regulations, even if an employee has not worked enough hours to qualify for leave under the Family and Medical Leave Act (FMLA), he may qualify for time off from work (either in a block of time or on an intermittent basis) as a reasonable accommodation under the ADAAA. The lesson from these settlements is that individualized assessments are essential when it comes to making decisions as to whether to grant reasonable accommodation requests. Indeed, making exceptions to company policies may be the only reasonable choice.

    Guidelines for Employers in the Wake of Recent ADAAA Court Decisions and EEOC Settlements

    In light of these recent decisions interpreting the ADAAA and its regulations, employers should consider the following:

    • Have a designated company representative who is knowledgeable about the ADA and ADAAA be responsible for responding to employees' reasonable accommodation requests. Incorrectly deciding whether someone is “disabled” can have severe implications for potential claims of disability discrimination and failure-to-accommodate.

    • Conduct training on the ADA and the EEOC’s regulations interpreting the ADAAA for managers and human resources staff responsible for disability management.

    • Upon notice, begin the interactive process to determine whether a reasonable accommodation is required and document each step of the individual assessment comparing the disabled employee’s circumstances with the job requirements.

    • Review and update policies on reasonable accommodation, FMLA leave, leave of absence, and no-fault attendance to ensure they are applied on an individual basis and allow exceptions for individuals with disabilities. At a minimum, conduct individualized reviews of how policies apply to particular employees to determine whether an additional leave extension is a reasonable accommodation that would allow the employee to return to work and perform essential job functions. Do not apply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period.