January 1, 2009: ADA Protections Broadened
December, 2008
This article provides key points which you can use in training your employees about the new ADA Amendments Act (ADAAA) which became effective January 1, 2009. If you have not already started your training, it is imperative that you do. If you have conducted your training, as stated, this provides key points about the ADAAA which your managers can use as a quick reference.
Prior Supreme Court Decisions Overturned
The new legislation specifically overturns two prominent Supreme Court decisions and companion cases. First, in Sutton v. United Airlines, Inc., (1999), the United States Supreme Court had held that courts were to consider “mitigating measures” which are used to overcome or manage impairments when deciding whether a person’s disability was ADA protected. Then, in Toyota Motor Mfg., Ky, Inc. v. Williams (2002), the Supreme Court had held that in order to be “substantially limited” in performing a major life activity under the ADA, a person must have an impairment that prevents or severely restricts the person from performing activities of central importance in a person’s daily life.
New Mandate of ADAAA
As stated, however, both the Sutton and the Toyota decisions specifically were rejected by the legislature in the ADAAA as “eliminating protections from many individuals whom Congress intended to protect… .” Congress stated that its intent was to “provide a clear and comprehensive national mandate for the elimination of discrimination of persons with disabilities and provide broad coverage... .”
Therefore, the ADAAA:
• Rejects the Sutton decision.
Employers no longer can take into account “mitigating measures” in determining whether an individual has an ADA protected disability. Effective January 1, 2009, in determining if someone is disabled, do not consider mitigating measures such as:
· Medication,
· Prosthesis,
· Assistive technologies, and
· Auxiliary aids, such as hearing aids (or behavior/neuro modifications).
• Rejects the Toyota decision.
Effective January 1, 2009, protected disabilities are no longer restricted to those involved in performing activities of a central importance to most people’s daily lives.
Congress also directed the EEOC to revise its definition of “substantially limits,” -- which, for the time being, leaves employers with further uncertainty.
Definition of Major Life Activities
Now, under the ADAAA, major life activities are divided into “general” and “major bodily functions”. The list of general life activities is extensive and includes but is not limited to:
• Self-care,
• Seeing,
• Eating,
• Walking,
• Performing manual tasks,
• Hearing,
• Sleeping, and
• Standing and breathing, among others.
Major bodily functions include but are not limited to functions of the:
• Immune system,
• Digestive system,
• Bladder,
• Respiratory,
• Endocrine,
• Normal cell growth,
• Bowel,
• Neurological,
• Circulatory, and
• Reproductive functions, among others.
Perception Cases Easier to Bring
Under the ADAAA, perception of an impairment need not be of a major life activity, thereby making it easier for someone to be perceived as having a disability. However, in order for the impairment to be covered, it must have an actual or expected duration greater than six (6) months.
Episodic Or In Remission Protection
If an employee suffers from an episodic disability or one that is in remission, it is now clear that the disability will be protected if it would substantially limit a life activity when it is active. Given that major life activities include bodily functions, illnesses such as cancer, epilepsy and diabetes may now be more clearly protected.
Retroactive?
There’s an ongoing debate as to whether or not Congress intended the ADAAA to be retroactive. Congress did not make a specific statement that the Act is retroactive. Therefore, some do not believe that the ADAAA is retroactive. If that’s the case, then the way an employer treated prior alleged disabilities would not be affected. However, the ADAAA expressly overturned the Sutton and Toyota decisions; specifically stating that the Court had not followed the clear intent of the original Americans with Disabilities Act of 1990. Therefore, prior decisions regarding alleged disabilities may have to be reversed. Of course, the impracticality of having to reverse past decisions would be a nightmare for employers. Unfortunately, employers will have to wait for the Courts to resolve this issue.
Practice Tips
- Correct past practices that otherwise would continue beyond January 1, 2009,
- Alert and train your supervisors and managers,
- Re-implement the interactive process regarding disabilities,
- Check and revise current policies,
- Create new or revise current letters and other documentation,
- Review/revise essential functions of the job,
- Ask to talk to the Employee’s Physician,
- Focus on searching for accommodations, and
- Document if accommodation would be an “undue hardship.”
Call Jim Barber for further information at (312) 606-7712 or e-mail at jbarber@clausen.com.
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