At a time when Congress is busy with a historic bail out of financial institutions in an effort to get our economy back on track, they have also finalized significant revisions to the Americans with Disabilities Act ("ADA"). These changes remind some of the movie "While You Were Sleeping" as these changes have rolled along through both Houses almost unnoticed. This bill, which was signed into law by the President on September 25th, clarifies some aspects of the ADA and EEOC's regulations but, more significantly, these changes will likely strengthen protections for disabled applicants and employees under the law.
BACKGROUND
On September 17, 2008, the U.S. House of Representatives approved the ADA Amendments Act (S. 3406) by a voice vote, following a similar action by the Senate six days before. The House had passed its own version of the ADA bill earlier in the summer. The revised version of the Bill was a compromise and reportedly less drastic than the version that was first proposed. This version, the sponsors claim, will bring the ADA back to where Congress originally intended. That claim has been disputed.
The ADA Amendments Act was introduced, as its sponsors have argued, to address, and in some cases, reverse, the rulings in several court decisions, including U.S. Supreme Court decisions, that had, in their view, limited the scope of protections offered under the ADA. Several business-related and disability advocacy groups announced their support for S. 3406 and stated in a letter sent to members of Congress that "the court decisions over the last decade have excluded individuals who should have been covered under the current ADA law." Those groups, who include the U.S. Chamber of Commerce, the American Diabetes Association and the National Disability Rights Network, have stated that this new law "strikes an appropriate balance between the needs of individuals with disabilities and those of employers." That remains to be seen.
The following is a summary of the changes coming with these amendments to the ADA. The ADA will:
- Prohibit the consideration of measures that reduce or mitigate the impact of impairment - such as medication, prosthetics and assistive technology - in determining whether an individual has a disability under the law.
This is a significant departure from U.S. Supreme Court rulings in the late1990's where the Court held that if an individual could take prescribed medications or use corrective devices (e.g. eye glasses or contact lenses), and the medication or corrective devices mitigated or significantly reduced the level of the individuals' impairment, that person may not claim to be disabled and seek protection under the ADA. Those decisions made sense when the medications didn't cause other problems (e.g. harmful side effects) for the individuals involved. While glasses and contact lenses were noted as exceptions in the Bill, this course change will now require employers to treat employees as impaired (even though they use mitigating medications or use corrective devices) and discuss reasonable accommodations that help them perform their job as required.
- Cover applicants or employees who claim the employer discriminated against him/her based on the perception that he/she is disabled, regardless of whether the worker has an actual disability within the meaning of the law.
This has been a hot button issue under the ADA for years. The question of whether a person is "perceived as" or "regarded as" being disabled (treated differently based on the perception by the employer that the person is disabled) has been the subject of guidance from the U.S. Equal Employment Opportunity Commission (EEOC) and the basis for many claims under the ADA. Courts also have interpreted this protection differently over the years. With this change in the law, regardless of whether a person has an actual disability, claims harm based on a perception of disability by his/her employer, those discrimination claims under the ADA can proceed.
With regard to "perceived as" or "regarded as" disabled claims, there are a few positive developments with this law. The first is that "perceived as" claims cannot be based on transitory or minor impairments where the condition is expected to last less than six (6) months. The other development is a clarification that employers are not required to offer or grant reasonable accommodations to employees with those claims. That was a welcomed clarification for employers because courts have been split on this issue.
- Now provide broader coverage to protect anyone who faces discrimination on the basis of a disability.
This means that the definition of disability will now be broader and construed as inclusive as possible. One example provided in the Bill is that an impairment which is episodic or in remission would be considered a disability if it would substantially limit the employee in a major life activity when the impairment is active. The scope of these changes is not yet known as the law directs EEOC to now develop regulations that are consistent with these broader definitions of the term "disabled". Congress provided some direction in that regard. They instructed EEOC to effectively abandon the "substantially limits" standards as to the limitations created by a disability and adopt a less restrictive "significantly restricted" standard.
The ADA (passed in 1990 and effective in 1992) guaranteed that employees with disabilities would be judged on their merits and not on an employer's prejudices. The sponsors and supporters of this law argued that court rulings since the ADA's enactment have dramatically limited the ability of people with disabilities to seek justice under the law. Sponsors pointed to statistics that show in 2004 plaintiffs lost 97% of the ADA disability discrimination cases that went to trial. They also focused on four recent Supreme Court cases under the ADA and argued that the definition of disability so much that people with serious conditions such as epilepsy, muscular dystrophy, cancer, diabetes and cerebral palsy have been found not to be disabled within the meaning of the ADA. That may be a bit of an overstatement as each of these cases is different depending upon the nature and extent of the person's impairment, the requirements of the job and the scope of possible accommodations. The reality is that there have been many misplaced and legally deficient claims filed under the ADA over the years.
Employers, since 1992, have made great strides to tear down physical (e.g. correcting physical barriers such as curb cuts, stairs without ramps, narrow doors, inaccessible restrooms etc.) and institutional barriers (e.g. revising job applications/job descriptions and updating handbooks and other policies as well as training managers on how to deal with disabled applicants and workers and their accommodation requests). There is still work to be done, but employers may now have more of a challenge with these new, employee-favored standards.
This law will become effective on January 1, 2009. Stay tuned. In the meantime, employers should take another look at their applications, policies, job descriptions and management training programs as the burden on employers, when defending against ADA claims, will likely be greater going forward.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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