Beginning on January 1, 2009, employers will have to comply with a new set of rules when it comes to disability discrimination in the workplace. On that date, recent amendments to the Americans with Disabilities Act ("ADA") will go into effect. 

The Changes:

Since its enactment in 1990, the ADA has extended protections from discrimination and the right to reasonable accommodations to individuals who have a physical or mental "impairment" that "substantially limits" one or more "major life activity." Because the courts have interpreted those terms narrowly, the focus of ADA analysis over the past eighteen years has been on whether the individual is "disabled," and therefore eligible for ADA protections at all. This focus significantly limited the number of employees who could benefit from the ADA. For example, on the one hand, employees whose impairments do not cause "substantial" limits are not protected, but on the other hand, if their impairments are so "substantial" that the employees cannot perform the essential functions of their jobs, they are also not protected. Thus, only those employees within the narrow band between "substantially limited" and "too substantially limited" benefited from the ADA.

The recent amendments are intended to expand the definition of who is disabled so that the focus shifts from whether the employee qualifies for ADA protections to whether discrimination has occurred or reasonable accommodations can be made. Among other things, the amendments: 

  • reject the U.S. Supreme Court's interpretation that "substantially limits" means "prevents or severely restricts," and calls for a less demanding standard;
  • prohibit consideration of mitigating measures such as medication, hearing aids or accommodations (other than ordinary eyeglasses or contact lenses) when determining whether an impairment constitutes a disability;
  • expand and clarify what fits within the definition of "major life activities;" and
  • provides that an individual who is merely regarded as having an impairment (regardless of whether he actually has an impairment or whether the impairment rises to the level of a disability) is protected from disability discrimination, but is not entitled to reasonable accommodations. 

What the Changes Mean:

The amendments to the ADA mean that more employees (and applicants for jobs) will fit within the protections of the ADA. Employers will likely be required to make more accommodations for disabilities and will need to exercise greater caution when making employment decisions affecting individuals with physical or mental impairments. These changes, however, do not apply retroactively to decisions made prior to the January 1, 2009, effective date of the amendments. 

Recommendations:

To ensure compliance with the revisions to the ADA we recommend that employers consider doing the following before the amendments take effect:

  1. Recognize that more individuals are going to qualify for reasonable accommodations;
  2. Train frontline supervisors to understand that any link between an employment decision and an impairment may give rise to a "regarded as" claim of discrimination; thus, supervisors must avoid comments about employees' impairments;
  3. Establish a process for centralized decision making when employment decisions involve employees with physical or mental impairments and when employees request accommodations; and
  4. Review policies and practices to ensure ADA compliance, particularly those related to post-offer medical examinations (choosing to revoke an offer of employment based on such an examination may give rise to a "regarded as" claim); and
  5. Review and update (or, if necessary, create) job descriptions for all positions.