The ADA Amendments Act, or the
ADAAA, was signed into law by
President Bush and takes effect on January 1, 2009. This Act makes significant
changes to the Americans with Disabilities
Act of 1990, which will pose challenges to
employers in avoiding and defending claims
of disability discrimination.
“The congressional intent conveyed in the
ADAAA is that courts should focus on
whether covered employers are complying
with their obligations under the Act, rather
than on whether an individual’s impairment
constitutes a covered disability,” says Patricia
Diulus-Myers, a partner and a member of
Jackson Lewis LLP’s Disability, Leave and
Health Management Practice Group.
Smart Business spoke with Diulus-Myers
about the new law’s implications.
What’s so new about the ADAAA?
The ADAA is a reaction by Congress to the
perception that the judiciary has too narrowly construed the scope of an individual’s
access to protection under the ADA, thus limiting rights of the disabled. Historically,
employers have won more than 95 percent of
ADA lawsuits, mainly because of the narrow
construction courts have given to the definition of a ‘disability.’ In referencing several
landmark ADA-related Supreme Court decisions, the Act’s expressed purpose is to overturn those decisions and to have the definition of ‘disability’ interpreted more broadly.
What should employers do?
Companies will face more challenging ADA
issues and should prepare to defend more
complex cases in this area. Now is a good
time to review existing procedures for compliance at every stage of employment, including hiring, medical testing, accommodations,
leaves and termination.
Those dealing with leave and health management issues should be well aware of the
amendments and have processes in place to
address requests for accommodation. Training in this area will be critical.
Other considerations include:
- When determining who is covered
under leave management policies and if
accommodations should be provided or if
they pose undue hardships, be prepared to defend those judgments. - Evaluate workplace risks according to
the ‘direct threat’ standard under the ADA. - Essential job functions, performance and
conduct standards should be scrutinized as
to their job-relatedness. - Documentation and record keeping will
be very important in order to defend these
decisions in a court of law.
How will legal decisions be affected under
the ADAAA?
It will be easier for ADA plaintiffs to prove
that they are disabled. Prior to the amendments, mitigating measures such as prostheses and medication could be considered in
this analysis, but the ADAAA has rejected
such consideration. Whether someone is
‘regarded as’ being disabled, is another factor
under the ADA, and the amendments have
made it easier for plaintiffs here also. A plaintiff can prevail in showing he or she is ‘regarded as’ having a disability, whether or not the
physical or mental impairment actually limits
or is perceived to limit a major life activity.
Whether more plaintiffs will prevail at trial
remains to be seen. Courts will be less likely
to rule in an employer’s favor, both on summary judgment before trial, or by directing a verdict for the employer at trial. Thus, juries
will be deciding these cases more frequently.
Can you cite an example of how the new law
can impact past court decisions?
Let’s take a plaintiff who has a limp. Under
the old act, the limp alone probably would
not constitute a disability. Under the amendments, courts are cautioned not to give
extensive analysis to the alleged disability, so
a limp alone may constitute a disability. And,
because the limp may be related to a chronic
condition that lasts more than six months,
the plaintiff more easily can prove a ‘regarded as’ disabled claim. In such a case, the new
act does not require a showing that the
alleged impairment is even perceived to limit
a major life activity. Luckily, employers will
not be required to reasonably accommodate
individuals who are only ‘regarded as’ disabled. This is just one of many conditions to
which courts will be giving closer scrutiny.
How can employers assure that their key personnel are versed on the law?
Both the ADA and Family and Medical
Leave Act are very complex statutes which
require familiarity, education and experience.
No one should tackle these issues without a
firm knowledge base. Some law firms offer
‘preventive lawyering’ through training programs for key legal and human resources
personnel, and educational programs on cutting-edge workplace laws. On-going counseling and legal updates are also recommended
to remain current on leave management
developments. One resource available to
employers, particularly for attendance
issues, is the EEOC’s new ADA Guidance on
Performance and Conduct Standards.
Do you anticipate more ADA litigation in the
coming months and years?
Yes. Plaintiffs’ attorneys will welcome the
amendments, since the prior hurdle of proving a covered disability won’t be a significant
focus of courts. In the past, in view of the 95
percent failure rate, these cases were avoided. Now, they’ll be more attractive.
PATRICIA DIULUS-MYERS is a partner and a member of Jackson Lewis LLP’s Disability, Leave and Health Management Practice
Group. Reach her at (412) 232-0180 or [email protected].
