ADA Amendments Act

and Americans with Disabilities Act (ADA)

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The ADA Amendments Act, was signed into law by President George W. Bush on September 25, 2008. The ADAAA expands the interpretation of the Americans with Disabilities Act of 1990 (ADA), which prohibits discrimination against disabled workers or job applicants. The ADA Amendments expand the interpretation of the ADA's coverage and the definition of what disabilities are covered under the Act. On June 17, 2009, the EEOC voted to revise the regulations to the ADA Amendments Act.

The ADA Amendments Act became effective January 1, 2009, presumably to allow time for the Equal Employment Opportunity Commission (EEOC) to issue new regulations and for employers to ensure that they understand and are in compliance with the law's new requirements.The ADA covers all private employers, state and local governments, and educational institutions that employ 15 or more individuals.

The ADA Amendments Act expands interpretation of the ADA's coverage, which has been narrowly construed by case law since a string of U.S. Supreme Court decisions starting in 1999. The ADA Amendments Act specifically targets two of these decisions -- the 1999 decision in Sutton v. United Airlines Inc., which limited the ADA's protection for employees and job applicants whose disabilities could be "mitigated" by measures such as medication, treatment, or assistive devices, and the 2002 decision in Toyota Motor Manufacturing, Ky, Inc. v. Williams, which tightened the standard for individuals to be considered "substantially limited" by their disability.

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Definition of disability under the ADA and ADA Amendments Act
The ADA was enacted to protect qualified employees and applicants with disabilities from discrimination by employers. It requires a covered employer to make reasonable accommodations to allow a disabled individual to perform the essential functions of his job. To be protected, a worker must establish that he is disabled within the meaning of the statute. Not every illness or ailment qualifies as a "disability" under the ADA.

Under the ADA, workers must satisfy a three-part test before they are entitled to the benefits and protections of the Act. First, the employee must demonstrate that she has a physical or mental impairment that substantially limits one or more of her major life activities. She can also satisfy the "impairment" requirement by demonstrating that she has a record of an impairment or that her employer regarded her as having an impairment. Second, the employee must establish that her impairment substantially limits a "major life activity." And third, she must establish that even with the disability, she can perform the essential functions of her job, with or without reasonable accommodation. Of course, each of those terms has been examined extensively by the courts.

The ADA Amendments Act provides that the term "substantially limits" must be interpreted consistently with the "findings and purposes" of the ADA Amendments Act. Those findings and purposes are provided as a list of general and specific requirements at the beginning of the Act, which champion a less demanding standard than is currently applicable. The ADA Amendments Act also clarifies that it is to be construed "in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act."

The ADA Amendments Act also provides an extensive list of those tasks that constitute "major life activities," including physical tasks such as walking, standing, and lifting; mental tasks such as learning, reading, and thinking; and even the operation of major bodily functions, such as immune system function, cell growth, and reproductive function.

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Other changes the ADA Amendments Act made to the ADA
The ADA Amendments Act includes other changes to the ADA such as:

• expansion of the definition of a "major life activity";
• noting that an impairment that substantially limits one major life activity doesn't have to limit other major life activities to be considered a disability;
• clarifying that impairments that are episodic or in remission are considered a disability if they would substantially limit a major life activity when active;
• overturning the Sutton standard by specifying that determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of listed mitigating measures; and
• providing that an individual doesn't have to establish that his impairment limits or is perceived to limit a major life activity to be "regarded as being disabled."

Americans with Disablities (ADA) Compliance Manual

Accommodations for employees and applicants with disabilities
You are required to make reasonable accommodations for all qualified individuals with a disability unless doing so would cause you an undue hardship. Because the standard is high, most employers will have trouble proving that an accommodation causes such a hardship.

You should note that granting extended leave to an employee is considered a form of reasonable accommodation. Thus, even if the employee has used up his sick leave, Family and Medical Leave Act (FMLA) leave, and vacation leave, you still may need to grant additional leave for employees with disabilities.

Claims by employees and job applicants of being regarded as disabled
The ADA Amendments Act defines the requirements of being "regarded as having an impairment," specifying that workers or job applicants who are subjected to discrimination prohibited by the ADA, whether or not an actual or perceived impairment does limit the person's major life activities, would still be regarded as having an impairment.

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What happens when an employee files a disability discrimination charge with the EEOC?
As with Title VII of the Civil Rights Act of 1964, an employee first must file a charge with the Equal Employment Opportunity Commission (EEOC) before filing a complaint alleging an ADA violation against his employer.

Employees (or the EEOC) can sue for lost wages, benefits, reinstatement, and attorneys' fees. An employer may be liable for capped compensatory damages as well as punitive damages if the court finds intentional discrimination.

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HR Tools for the Americans with Disabilities Act (ADA)

• Sample Policy - Harassment and/or Discrimination