ADA Coverage Still Evolving After 25 Years

The ADA was most significantly amended by the aptly named ADA Amendments Acts of 2008. This law, which became effective Jan. 1, 2009, rejected several decisions of the U.S. Supreme Court, which interpreted the word disability more narrowly than Congress apparently intended. Most notably, the ADAAA expanded the definition of major life activities and relaxed the proof required to establish that a major life activity was substantially limited.

More recently, the EEOC issued federal regulations that provide guidance to employers interpreting this broadened definition of disability” Federal regulations explained, “The term 'substantially limits' shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. 'Substantially limits' is not meant to be a demanding standard.” Major life activities include but are not limited to seeing, hearing, thinking, walking, reading, communicating with others, working and the operation of a major bodily function.

Limited Activity

Given the requirement that a medical condition must substantially limit at least one major life activity to qualify as a disability, an issue arose regarding impairments that are sporadic or otherwise fluctuate in intensity. Courts facing early ADA lawsuits struggled with medical conditions such as diabetes, hypertension and epilepsy that unquestionably could impair major life activities but were not currently impairing the individual, often as a result of successful medical treatment.

In response, the statute and regulations were changed to clarify that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” For example, an employee with cancer currently in remission and who is otherwise in good health still has a disability under the ADAAA that must be reasonably accommodated, even if the employee's cancer is not currently impacting major life activities thanks to medical treatment.

Federal courts across the nation agreed with the EEOC's interpretation of the ADAAA and held that employers must accommodate an episodic impairment if it could substantially limit a major life activity when active.

Therefore, employers should avoid analyzing whether a particular employee's medical condition is currently impacting the employee's health. Instead, human resources professionals and decision-makers should ensure they are considering whether the medical condition of the employee or applicant substantially limits a major life activity whenever the condition is active.

ADA Protection

If a business has an applicant or employee who is disabled under this definition, reasonable steps must be taken to accommodate that disability if, and only if, the applicant or employee is “qualified.” The individual must possess the requisite skill, experience, education and other job-related requirements of the employment position and be able to perform the essential functions of such position without reasonable accommodation. The employer must provide reasonable accommodations if the individual otherwise meets the job requirements and can perform the essential functions.

Thus, an employer would likely need to provide an employee with diabetes with breaks to monitor insulin levels so long as those breaks would not result in an undue hardship to the company's business. On the other hand, if the individual cannot perform the essential function of the job, the employer need not accommodate the individual's disability. For example, an employer would not need to provide accommodations to job applicants for a position as a laborer at a mining operation if they had a medical condition that prevented them from being able to perform the heavy lifting that was an essential function of that position.

The EEOC has promulgated regulations that list various factors to consider when analyzing whether a particular job function is essential, including the amount of time performing the function, the experience of other employees in the position, and the judgment of the employer, often evidenced by a written job description.

There are inherent complications regarding whether a medical condition rises to the level of the legally defined disability and whether an individual is able to perform the essential functions of a particular position. Accordingly, businesses facing ADA issues should consult with experienced legal counsel to ensure they are complying with this continually changing federal law. While the ADA has continually provided legal protection to individuals with disabilities, it has continually changed as the EEOC and federal courts identify and address new circumstances not contemplated by Congress 25 years ago.

Roger Feicht is an associate with Gunster, resident in the firm's West Palm Beach office. This article also appeared on Law.com, an ALM affiliate of this newsletter.