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by Isham Jones
More of your employees may now have a protected disability under the law, which means
they may be entitled to a reasonable accommodation and other job-related protections. Changes to the Americans with Disabilities Act, which became effective on Jan. 1, significantly expand coverage under the act by lowering the bar for qualifying disabilities. The ADA applies to all employers with 15 or more employees.
The ADA protects employees from disability discrimination and requires employers to provide reasonable accommodations for disabled employees, unless doing so would impose an undue hardship on the employer. Common employee accommodations include allowing periodic rest breaks away from workstations (to check blood sugar or take medication, for example) and making the building more accessible with ramps, chair lifts, stair lifts, and -elevators.
The act defines a disability as a physical or mental impairment that “substantially limits one or more major life activities,” a “record of such an impairment,” or “being regarded as having such an impairment.” Thus, to be covered, an employee must first establish that he or she has a qualifying disability.
Expanded Coverage
The ADA amendments expressly reject U.S. Supreme Court decisions that have narrowed the definition of disability, thereby eliminating protection for many individuals Congress intended to protect. Congress even criticized the Equal Employment Opportunity Commission’s ADA regulations as “inconsistent with congressional intent by setting too high a standard.”
A primary battleground under the ADA is which standard should be used to determine whether an impairment substantially limits a major life activity. The Supreme Court held that the impairment must prevent or “severely restrict” the individual from -doing activities that are of central importance to most people’s lives. The ADA amendments expand the definition of “substantially limits” to allow broad coverage “to the maximum extent” permitted under the act. As an example of broad coverage, impairments that are “episodic or in remission” are protected disabilities if they would substantially -impair a major life activity when active.
Supreme Court decisions also required consideration of mitigating measures (e.g., visual aids, medication, hearing devices, etc.) in determining whether an impairment substantially limited a major life activity. By this standard, the ADA would not protect an individual whose impairment could be corrected so that it did not substantially impair a major life activity. The ADA amendments reverse this holding, stating that an impairment must be considered without regard to the effects of mitigating measures.
The ADA amendments switch the focus away from determining whether an individual has a qualified disability by stating that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” The “primary object of attention” is now on whether covered employers have met their compliance obligations.
Litigants have also fought extensively over what qualifies as a major life activity under the act. The ADA amendments attempt to clarify this issue by expressly adopting a nonexhaustive list of activities, such as: eating, sleeping, standing, lifting, bending, reading, thinking, concentrating, communicating, and the operation of major bodily functions (e.g., immune and digestive systems, neurological, res-piratory, and reproductive functions). Given that most jobs require employees to think and concentrate, employers may face a greater obligation to accommodate employees with impaired abilities in these areas.
The ADA amendments also significantly expand coverage for individuals who are regarded as disabled but who do not actually have a disability. To establish a claim, an individual need only show that he or she suffered an adverse employment action because of an actual or perceived impairment, regardless of whether the impairment was perceived to substantially limit a major life activity. Previously, the individual needed to demonstrate that the employer regarded him or her as having a qualifying disability. Removing this hurdle will allow a greater number of individuals the opportunity to bring a claim against an employer.
One positive for employers: Individuals cannot bring a “regarded as” discrimination claim based on a “transitory and minor” impairment, or one with an actual or expected duration of six months or less. In addition, employers are not required to reasonably accommodate individuals who are “regarded as” disabled.
Impact on Employers
The impact of the ADA amendments may depend on where you are located. Employers in California and New York, for example, where there are already expansive disability discrimination laws, will not likely see much of a change. For the rest of the nation, however, the expanded definition of “disability” will significantly increase the number of individuals protected under the ADA. The amendments also make clear that the focus will be on the employer’s compliance with the law rather than the individual’s disability.
To prepare for these changes, employers should review their policy for addressing requests for accommodation, considering that the Act now puts the emphasis on how employers can provide accommodation rather than on determining whether a disability exists. This process may be used more frequently because the greater number of qualifying disabilities means that more employees may be entitled to—and seek out—such accommodations. Employers should also revisit the essential functions of each job, since a reasonable accommodation may involve reallocating nonessential job -functions, restructuring a job, or providing a part-time or modified work schedule. It is equally important for employers to properly document the interactive process to maintain evidence of the -decision-making process.
The ADA amendments are too new to assess their full impact. However, employers are likely to see a spike in requests and claims under the ADA due to the significant expansion of coverage. The next two years will provide better insight into the effects of the ADA amendments as courts, attorneys, and employers grapple with these changes.
NAR’s ADA Compliance Kit
For more information on the Americans with Disabilities Act, download a complete copy of NAR’s ADA Compliance Kit. The kit covers employment, public accomodation, common questions, and provides a list of resourses. Visit nar.realtor/LetterLw.nsf/pages/92adacompliancekit.
Isham R. Jones is associate counsel with the National Association of Realtors® in Chicago. He can be reached at 312/329-8834 or ijones@realtors.org.