The ADA Amendments Act

Requirements for Actual Disability

The amendments expand the first category of impairments that substantially limit one or more major life activities, primarily by:

• Prohibiting the consideration of the beneficial effects of any corrective measures (such as medications, prosthetics, hearing aids, “auxiliary aids or services,” and adaptive behaviors but not “ordinary eyeglasses or contact lenses”) in determining whether an impairment substantially limits a major life activity;
• Expanding the number and nature of “major life activities” to include ordinary bodily functions (e.g., digestive functions) and nebulous cognitive activities such as learning, concentrating and thinking;
• Easing up on the “substantially limiting” standard by rejecting prior case law requiring employees to show that the impairment “severely restricts” or “significantly restrict[s]” the employee from doing a major life activity; and
• Including impairments that are “episodic” or “in remission” as protected disabilities (if they otherwise meet the definition of disability when active).

These changes expand the ADA to cover numerous previously unprotected employees whose medical conditions now will constitute protected disabilities. Many medical conditions that courts previously found unprotected (due to available corrective measures, their limited impact on a restricted concept of “major life activity” and/or their intermittent nature), now likely will be covered under the ADA. These include the disorders listed in the Box below.

Perceived Impairment

The amendments also expand the second method for establishing an entitlement to protection under the Act. To obtain protection, employees previously had to show that the employer perceived them to be disabled by an impairment that substantially limited a major life activity. The amendments eliminate the need to show that the perceived impairment substantially limits a major life activity, and an employee now satisfies this method by showing that he or she is perceived as having a mere impairment, regardless of whether it has any effect on the employee's ability to perform any daily life activities.

It will be relatively easy for applicants and employees to prove they have an impairment for several reasons. First, “impairment” is an extremely broad term that is defined by the Act as “any physiological disorder or condition” affecting a bodily system (e.g., neurological, respiratory, cardiovascular, etc.) and “any mental or psychological disorder.” 29 CFR ' 1630.2(h) (emphasis added). Second, the only exceptions provided by the amendments are impairments that are “transitory” (defined as having an actual or expected duration of six months or less) or “minor” (undefined). Thus, where an employer ' rightly or wrongly ' perceives an employee as having virtually any non-transitory or less-than-minor medical condition, that employee now will be protected by the ADA.

What Employers Should Do to Comply

In drafting these amendments, Congress not only drastically expanded the ADA's coverage; it further instructed that a court's “primary object of attention” in ADA suits should be whether employers “have complied with their obligations.” The threshold issue of whether an individual has a “disability,” on the other hand, now “should not demand extensive analysis.” Thus, to comply with the amendments, employers will have to approach issues of disability in a very different manner. It will no longer be appropriate first to assess whether an employee's condition constitutes a protected disability and then examine the possibility of a reasonable accommodation. Instead, the primary focus must be on working with the employee to accommodate the condition and ensure no adverse action is taken because of the condition. The following are some practical steps employers can take to comply with the amendments.

Think Twice Before Concluding No ADA Coverage

The amendments make it very risky for employers to take adverse action or fail to attempt accommodations based on the conclusion that an employee's condition does not constitute a disability under the ADA. Not only are far more conditions now covered as disabilities, but the amendments also make clear that technical questions about whether a condition is a disability are secondary to an employer's obligations under the Act.

Exceptions to the expanded definition of disability are limited, but there are a few. For instance, even after the amendments, certain medical conditions remain outside the statutory definition of disability: transgender disorders and certain psychiatric disorders inherently exposing a business to harm (pyromania, kleptomania, etc.). The amendments also exempt “ordinary eyeglasses or contact lenses” from the new general rule that corrective measures no longer may be considered in the disability analysis. Thus, even after the amendments, vision impairments correctible by ordinary glasses or contacts are not protected disabilities. Accordingly, if an employee is claiming one of these particular conditions, the employer need not provide reasonable accommodation and/or may take otherwise lawful adverse action. Other than these few scenarios, however, employers generally should assume that the employee's medical condition is a protected disability and proceed to comply with their resulting ADA obligations.

This approach is especially necessary given the changes to the “regarded as” method of establishing ADA protection. It now takes only the perception of an impairment that is not transitory or minor for an employee to be able to claim that any subsequent adverse action is disability discrimination. While the amendments clarify that there is no entitlement to reasonable accommodation for employees who are only regarded as disabled and not actually disabled, employers must still refrain from taking any adverse action against an employee based on the perceived impairment.

Upon Learning of a Medical Condition, Get the Facts and

Discuss Any Requested Accommodation

Upon learning that an employee may have a medical condition, other than one of the few that are excluded, employers must initiate action to fulfill their ADA obligations. Where the employee has advised the employer of a condition and requested accommodation or where the condition is obvious, a confidential meeting with the employee should take place and the employee should be asked about any accommodations that may be required to enable the employee to perform essential job functions. If the employee indicates an accommodation is needed, employers should then initiate the “interactive process” whereby the specific job-related limitations are identified, potential accommodations are suggested, and a determination is made. This procedure should be a structured process, and each case should be handled by specific individuals in the company to ensure consistency. This entire exchange, including the interactive process discussions, should be documented. If the employee indicates no accommodation is needed, that response should also be documented and filed. Such documents will be helpful to defend against any later allegations by the employee of denied accommodation. The process is more complicated when employers receive insufficient notice of a medical condition. This is due to ADA regulations prohibiting employers from making “inquiries as to whether an employee is an individual with a disability or as to the nature or severity of such disability.” Accordingly, employees should not be questioned unless their own statements, actions, or other reliable information indicate they believe they have a medical condition.

Review Past Rejections of Requested Accommodations

Any decision to deny a requested accommodation made before Jan. 1, 2009, especially if that decision was based on the conclusion that the condition did not constitute a protected disability, should be reviewed in light of the changes made by the amendments. If a different conclusion would have been made if the amendments applied, it would be prudent to revisit the situation and engage in the interactive process with the employee. These actions should also be fully documented.

Take Defensive Measures Before Imposing Adverse Action

To show they have complied with their obligations, employers should be thinking not only about providing reasonable accommodations but also about ensuring that any adverse action (discipline, demotion, transfer to a different, less attractive position, etc.) against employees with medical conditions are based on non-discriminatory reasons. Given the expanded ADA protection afforded by the amendments, employers must now more than ever be fully prepared before taking adverse action against employees with known medical conditions.

Before taking any adverse action, employers should take appropriate steps to determine if there is any indication that a medical condition is at issue. Employers should ask employees facing termination or other adverse actions whether there was a specific reason for their behavior (i.e., failure to carry out job functions), which is a prudent question before imposing discipline in virtually every instance, apart from ADA compliance. If the employee claims that a medical condition is the reason for the problem, the employer must then evaluate whether proceeding with the adverse action remains an appropriate response and initiate the interactive process to identify whether a reasonable accommodation is necessary and available.

The amendments do not give disabled employees absolute protection. Employers may still hold employees with disabilities to the same standards of conduct as other employees. For instance, if an employee who violates a work rule and is subject to disciplinary action reveals a medical impairment at the time discipline is imposed, the employer may nevertheless proceed with disciplinary action even if the impairment was the cause of the violation. Action should also be taken to provide an accommodation that will help the employee to avoid future violations, however. Further discipline will be appropriate later if the employee persists in the prohibited conduct despite the accommodation or if there is no reasonable way to accommodate.

Whenever an employer plans to take adverse action against an employee who may have a protected disability, the employer must be in a position to prove that it has non-discriminatory reasons for taking the adverse action. This generally means the employer should have documents supporting the non-discriminatory reasons (e.g., that the employee is not satisfactorily performing his or her job, the employee is engaging in conduct prohibited by company policy, etc.). This also means that the employer should investigate and confirm that: 1) non-disabled comparable employees were subjected to the same adverse action for engaging in similar misconduct; and 2) disabled comparable employees have not been disciplined.

Employers must be similarly prepared before taking adverse action against employees who complain of alleged disability discrimination or harassment. As disability discrimination claims rise, given the expanded protection of the ADA, it follows that claims asserting retaliation based on opposition to disability discrimination will also increase. Thus, employers should be equally prepared before taking adverse action against complaining employees (e.g., having documents supporting the non-retaliatory rationale for the decision and having identifiable non-complaining comparable employees who were treated similarly). Employers should also consider the timing between the employee's complaint and the contemplated adverse action. As a general matter, the shorter the time between the complaint and the adverse action, the stronger and clearer the employer's non-retaliatory reasons and comparables will need to be.

Prepare for the Rush

Because of the publicity generated when President Bush signed the amendments, employees may begin to contact managers and human resources personnel to ask questions and seek accommodations in greater numbers. It is critical that employers give consistent responses to those questions and requests, and consistently apply their accommodations process. Employers should train their human resources personnel and supervisors on the impact of the amendments, including the process for dealing with accommodation requests, so that they can consistently and appropriately respond.

As part of the preparation, employers should also review their handbooks and any other policies relating to disability or requests for accommodation to ensure they comply with the amendments. Given their importance in determining the kinds of measures that amount to reasonable accommodation, job descriptions and other documents describing the essential job functions also should be reviewed and, if necessary, revised to ensure they are sufficiently detailed and accurate.

Conclusion

The recent amendments to the Americans with Disabilities Act present significant changes to employer obligations. As a result, employers should assess their current policies and procedures and make necessary changes. This assessment should not only include how the employer handles employee disclosure of disability and the resulting accommodation process, but also how other HR activities are carried out, such as termination and discipline, to ensure ADA compliance. The information contained in this article is intended for general information purposes only and should not be construed as legal advice.

[IMGCAP(1)]

Theresa G. Van Vuren is an associate and David L. Weinstein and Sherrie Travis are partners in the Employment & Labor practice group of Wildman, Harrold, Allen & Dixon LLP, Chicago You may contact them for more information about the ADA Amendments Act at: David L. Weinstein: 312-201-2685, [email protected]; Sherrie Travis: 312-201-2198, [email protected].

Congress recently enacted the ADA Amendments Act of 2008 to clarify its intent as to who is protected by the Americans with Disabilities Act of 1990. In enacting these amendments, which went into effect on Jan. 1, 2009, Congress rejected the holdings of a series of U.S. Supreme Court cases, finding them to have “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.” Accordingly, Congress explicitly expanded coverage of the Act to override these holdings and “reinstate[d] a broad scope of protection to be available under the ADA.” (See Jonathan Cohen, The ADA Amendments Act, December 2008, Volume 16, Number 8.) Given this expansion of protection, more applicants and employees than ever before will be entitled to accommodations and able to assert disability discrimination claims. As a result, employers must now review and, if necessary, modify their practices and policies to ensure they are fully compliant with the Act and these amendments.

How the Amendments Expand ADA Coverage

Under the ADA, an individual can establish the threshold requirement of having a “disability” by (among other things): 1) having an actual “disability” ' defined as a physical or mental impairment that substantially limits one or more major life activities; or 2) being regarded as a having such an impairment. The amendments significantly expand these two concepts, making it far easier for individuals to show they have a disability or have been perceived to have a disability and are thereby entitled to protection under the ADA.

Requirements for Actual Disability

The amendments expand the first category of impairments that substantially limit one or more major life activities, primarily by:

• Prohibiting the consideration of the beneficial effects of any corrective measures (such as medications, prosthetics, hearing aids, “auxiliary aids or services,” and adaptive behaviors but not “ordinary eyeglasses or contact lenses”) in determining whether an impairment substantially limits a major life activity;
• Expanding the number and nature of “major life activities” to include ordinary bodily functions (e.g., digestive functions) and nebulous cognitive activities such as learning, concentrating and thinking;
• Easing up on the “substantially limiting” standard by rejecting prior case law requiring employees to show that the impairment “severely restricts” or “significantly restrict[s]” the employee from doing a major life activity; and
• Including impairments that are “episodic” or “in remission” as protected disabilities (if they otherwise meet the definition of disability when active).

These changes expand the ADA to cover numerous previously unprotected employees whose medical conditions now will constitute protected disabilities. Many medical conditions that courts previously found unprotected (due to available corrective measures, their limited impact on a restricted concept of “major life activity” and/or their intermittent nature), now likely will be covered under the ADA. These include the disorders listed in the Box below.

Perceived Impairment

The amendments also expand the second method for establishing an entitlement to protection under the Act. To obtain protection, employees previously had to show that the employer perceived them to be disabled by an impairment that substantially limited a major life activity. The amendments eliminate the need to show that the perceived impairment substantially limits a major life activity, and an employee now satisfies this method by showing that he or she is perceived as having a mere impairment, regardless of whether it has any effect on the employee's ability to perform any daily life activities.

It will be relatively easy for applicants and employees to prove they have an impairment for several reasons. First, “impairment” is an extremely broad term that is defined by the Act as “any physiological disorder or condition” affecting a bodily system (e.g., neurological, respiratory, cardiovascular, etc.) and “any mental or psychological disorder.” 29 CFR ' 1630.2(h) (emphasis added). Second, the only exceptions provided by the amendments are impairments that are “transitory” (defined as having an actual or expected duration of six months or less) or “minor” (undefined). Thus, where an employer ' rightly or wrongly ' perceives an employee as having virtually any non-transitory or less-than-minor medical condition, that employee now will be protected by the ADA.

What Employers Should Do to Comply

In drafting these amendments, Congress not only drastically expanded the ADA's coverage; it further instructed that a court's “primary object of attention” in ADA suits should be whether employers “have complied with their obligations.” The threshold issue of whether an individual has a “disability,” on the other hand, now “should not demand extensive analysis.” Thus, to comply with the amendments, employers will have to approach issues of disability in a very different manner. It will no longer be appropriate first to assess whether an employee's condition constitutes a protected disability and then examine the possibility of a reasonable accommodation. Instead, the primary focus must be on working with the employee to accommodate the condition and ensure no adverse action is taken because of the condition. The following are some practical steps employers can take to comply with the amendments.

Think Twice Before Concluding No ADA Coverage

The amendments make it very risky for employers to take adverse action or fail to attempt accommodations based on the conclusion that an employee's condition does not constitute a disability under the ADA. Not only are far more conditions now covered as disabilities, but the amendments also make clear that technical questions about whether a condition is a disability are secondary to an employer's obligations under the Act.

Exceptions to the expanded definition of disability are limited, but there are a few. For instance, even after the amendments, certain medical conditions remain outside the statutory definition of disability: transgender disorders and certain psychiatric disorders inherently exposing a business to harm (pyromania, kleptomania, etc.). The amendments also exempt “ordinary eyeglasses or contact lenses” from the new general rule that corrective measures no longer may be considered in the disability analysis. Thus, even after the amendments, vision impairments correctible by ordinary glasses or contacts are not protected disabilities. Accordingly, if an employee is claiming one of these particular conditions, the employer need not provide reasonable accommodation and/or may take otherwise lawful adverse action. Other than these few scenarios, however, employers generally should assume that the employee's medical condition is a protected disability and proceed to comply with their resulting ADA obligations.

This approach is especially necessary given the changes to the “regarded as” method of establishing ADA protection. It now takes only the perception of an impairment that is not transitory or minor for an employee to be able to claim that any subsequent adverse action is disability discrimination. While the amendments clarify that there is no entitlement to reasonable accommodation for employees who are only regarded as disabled and not actually disabled, employers must still refrain from taking any adverse action against an employee based on the perceived impairment.

Upon Learning of a Medical Condition, Get the Facts and

Discuss Any Requested Accommodation

Upon learning that an employee may have a medical condition, other than one of the few that are excluded, employers must initiate action to fulfill their ADA obligations. Where the employee has advised the employer of a condition and requested accommodation or where the condition is obvious, a confidential meeting with the employee should take place and the employee should be asked about any accommodations that may be required to enable the employee to perform essential job functions. If the employee indicates an accommodation is needed, employers should then initiate the “interactive process” whereby the specific job-related limitations are identified, potential accommodations are suggested, and a determination is made. This procedure should be a structured process, and each case should be handled by specific individuals in the company to ensure consistency. This entire exchange, including the interactive process discussions, should be documented. If the employee indicates no accommodation is needed, that response should also be documented and filed. Such documents will be helpful to defend against any later allegations by the employee of denied accommodation. The process is more complicated when employers receive insufficient notice of a medical condition. This is due to ADA regulations prohibiting employers from making “inquiries as to whether an employee is an individual with a disability or as to the nature or severity of such disability.” Accordingly, employees should not be questioned unless their own statements, actions, or other reliable information indicate they believe they have a medical condition.

Review Past Rejections of Requested Accommodations

Any decision to deny a requested accommodation made before Jan. 1, 2009, especially if that decision was based on the conclusion that the condition did not constitute a protected disability, should be reviewed in light of the changes made by the amendments. If a different conclusion would have been made if the amendments applied, it would be prudent to revisit the situation and engage in the interactive process with the employee. These actions should also be fully documented.

Take Defensive Measures Before Imposing Adverse Action

To show they have complied with their obligations, employers should be thinking not only about providing reasonable accommodations but also about ensuring that any adverse action (discipline, demotion, transfer to a different, less attractive position, etc.) against employees with medical conditions are based on non-discriminatory reasons. Given the expanded ADA protection afforded by the amendments, employers must now more than ever be fully prepared before taking adverse action against employees with known medical conditions.

Before taking any adverse action, employers should take appropriate steps to determine if there is any indication that a medical condition is at issue. Employers should ask employees facing termination or other adverse actions whether there was a specific reason for their behavior (i.e., failure to carry out job functions), which is a prudent question before imposing discipline in virtually every instance, apart from ADA compliance. If the employee claims that a medical condition is the reason for the problem, the employer must then evaluate whether proceeding with the adverse action remains an appropriate response and initiate the interactive process to identify whether a reasonable accommodation is necessary and available.

The amendments do not give disabled employees absolute protection. Employers may still hold employees with disabilities to the same standards of conduct as other employees. For instance, if an employee who violates a work rule and is subject to disciplinary action reveals a medical impairment at the time discipline is imposed, the employer may nevertheless proceed with disciplinary action even if the impairment was the cause of the violation. Action should also be taken to provide an accommodation that will help the employee to avoid future violations, however. Further discipline will be appropriate later if the employee persists in the prohibited conduct despite the accommodation or if there is no reasonable way to accommodate.

Whenever an employer plans to take adverse action against an employee who may have a protected disability, the employer must be in a position to prove that it has non-discriminatory reasons for taking the adverse action. This generally means the employer should have documents supporting the non-discriminatory reasons (e.g., that the employee is not satisfactorily performing his or her job, the employee is engaging in conduct prohibited by company policy, etc.). This also means that the employer should investigate and confirm that: 1) non-disabled comparable employees were subjected to the same adverse action for engaging in similar misconduct; and 2) disabled comparable employees have not been disciplined.

Employers must be similarly prepared before taking adverse action against employees who complain of alleged disability discrimination or harassment. As disability discrimination claims rise, given the expanded protection of the ADA, it follows that claims asserting retaliation based on opposition to disability discrimination will also increase. Thus, employers should be equally prepared before taking adverse action against complaining employees (e.g., having documents supporting the non-retaliatory rationale for the decision and having identifiable non-complaining comparable employees who were treated similarly). Employers should also consider the timing between the employee's complaint and the contemplated adverse action. As a general matter, the shorter the time between the complaint and the adverse action, the stronger and clearer the employer's non-retaliatory reasons and comparables will need to be.

Prepare for the Rush

Because of the publicity generated when President Bush signed the amendments, employees may begin to contact managers and human resources personnel to ask questions and seek accommodations in greater numbers. It is critical that employers give consistent responses to those questions and requests, and consistently apply their accommodations process. Employers should train their human resources personnel and supervisors on the impact of the amendments, including the process for dealing with accommodation requests, so that they can consistently and appropriately respond.

As part of the preparation, employers should also review their handbooks and any other policies relating to disability or requests for accommodation to ensure they comply with the amendments. Given their importance in determining the kinds of measures that amount to reasonable accommodation, job descriptions and other documents describing the essential job functions also should be reviewed and, if necessary, revised to ensure they are sufficiently detailed and accurate.

Conclusion

The recent amendments to the Americans with Disabilities Act present significant changes to employer obligations. As a result, employers should assess their current policies and procedures and make necessary changes. This assessment should not only include how the employer handles employee disclosure of disability and the resulting accommodation process, but also how other HR activities are carried out, such as termination and discipline, to ensure ADA compliance. The information contained in this article is intended for general information purposes only and should not be construed as legal advice.

[IMGCAP(1)]

Theresa G. Van Vuren is an associate and David L. Weinstein and Sherrie Travis are partners in the Employment & Labor practice group of Wildman, Harrold, Allen & Dixon LLP, Chicago You may contact them for more information about the ADA Amendments Act at: David L. Weinstein: 312-201-2685, [email protected]; Sherrie Travis: 312-201-2198, [email protected].