The start of a new year means change.
One big change affecting businesses is
the Americans with Disabilities (ADA) Amendments Act, which keeps the three-part basic definition of disability the same,
but makes other major changes to the Act.
“Congress’ original intent was for the definition of disability to be construed broadly,
but in their handling of cases, courts have
narrowed the definition of disability to the
point where the Act no longer covers the
people Congress originally intended it to
cover,” says Megan Kreitner Ouzts, associate with Baker, Donelson, Bearman,
Caldwell & Berkowitz PC.
Smart Business spoke with Ouzts about
how to deal with the changes and what can
happen if businesses are not prepared for
them.
What are some of the major differences in
the ADAAA?
One of the biggest differences is that the
ADAAA overturns the Sutton trilogy of
cases, which held that ‘mitigating measures’
that help individuals control or cope with
impairments must be considered in determining whether an individual is disabled
within the meaning of the ADA. The result
of these decisions had been to exclude from
the ADA many people, such as those with
insulin-controlled diabetes, whom Congress
intended to cover. Now, generally speaking,
no mitigating measures will be taken into
account except ordinary eyeglasses and
contacts.
Another big change is that the ADAAA
now provides two lists of major life activities, the first of which includes, for the first
time, major bodily functions defined as functions of the immune system, normal cell
growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine
and reproductive functions. The second list
is different than the ADA’s original list in that
it contains not only most of the major life
activities previously recognized by the U.S.
Equal Employment Opportunity Commission, but it also recognizes several new activities, for example, bending, reading and communicating. The Amendments Act also
states specifically that an impairment can be
a disability even if episodic or in remission.
How does the ADAAA affect businesses?
More people will qualify as disabled under
this Act because Congress has been very
clear that the definition will be construed
broadly. This means that more employees are
going to request accommodations from their
employers, who will inevitably find themselves dedicating more resources (financial
and administrative) to analyzing and, where
appropriate, providing these requests.
Additionally, the ADAAA is going to
change how we litigate disability cases
because there are going to be fewer threshold cases. By this I mean that, in the past,
employers often fought ADA claims by disputing whether a person was ‘disabled’
under the Act. Employers would win cases
at the summary judgment phase by taking
advantage of the narrow definition of disability. But now, because the definition of
disability will be construed so broadly,
lawyers will be fighting less about whether
plaintiffs are disabled. This will result in a
focus shift in litigation. The new battlegrounds will be, for example, whether the
employer offered a reasonable accommodation or whether the person could perform
the essential functions of his or her job with
or without an accommodation.
How should businesses make adjustments?
- Train supervisors to engage in the interactive process and properly document
requests for accommodations. Teach them
how to handle requests, inform them of the
expanded definition of disability, discuss
available accommodations, and caution
them to expect more administrative legwork. - Make sure your company policies conform to the new law. Consult legal counsel to
revise policies and handbooks if needed. - Remember, employers are not required
to remove an essential function of a job when
providing an accommodation. Revise job
descriptions to be sure all essential functions
of a job are included, and determine whether
those already listed are truly essential. - Pay attention. Changes may still occur as
the EEOC promulgates new rules interpreting the ADAAA. It is also likely that the
Department of Justice, which issues regulations for the ADA, will promulgate new regulations and hold a public comment period to
address any proposed new language.
What else should businesses know about the
ADAAA?
If a company is not engaging in the interactive process in good faith and chooses not to
properly document that process, it’s going to
open itself up to liability. Documentation will
be critical, as will obtaining buy-in of supervisors and human resources professionals who
handle requests. Document all aspects of
accommodation requests, the process with
the employees and, of course, which accommodation was eventually chosen and why.
Companies should not feel as if they have
to offer every accommodation that is requested. Under the ADAAA, employers are under
no obligation to provide employees with the
exact accommodation requested or the ‘best’
accommodation. They need only provide a
‘reasonable’ accommodation, which means,
at the very minimum, one that does not cause
the employer undue hardship.
MEGAN KREITNER OUZTS is an associate with Baker, Donelson, Bearman, Caldwell & Berkowitz PC. Reach her at (678) 406-8736
or [email protected].
