The ADA Amendments Act
The question of when, whether, and how to accommodate disabled employees under the Americans with Disabilities Act (“ADA”) often looks like a minefield for covered employers. Fortunately, recent amendments to the ADA have simplified this question, while simultaneously making it vital that employers pay attention to their obligations under the ADA.
In March of this year, the EEOC issued its final regulations to implement the ADA Amendments Act (“ADAAA”), which was signed into law in September 2008. The ADAAA sharply redefined the standard an employee must meet to show that he or she is “disabled” under the ADA.
The ADA defines disability as (1) a physical or mental impairment that substantially limits one or more major life activities of an individual; (2) a record of having such an impairment; or (3) being regarded as having such an impairment. Congress drafted the ADAAA to respond to two disturbing trends that had developed in the case law regarding what it meant to be “substantially limited” in a major life activity – first, that courts would not define an individual as disabled under the ADA despite the presence of impairment in a major life activity if the impairment could be ameliorated through medications, devices, or other means; and second, that an individual would not be defined as disabled if the impairment affected only activities related to his or her job, as opposed to “daily life.” As a result of these two trends, a good deal of litigation in ADA cases revolved around whether a plaintiff employee was actually “disabled,” without ever reaching the question of the employer’s behavior.
With the ADAAA, Congress explicitly rejected the courts’ increasing throttling of the purposes of the ADA. Significantly, Congress directed that the courts’ primary focus should be whether employers had actually complied with their obligations, and that whether the plaintiff employee was disabled should not demand extensive analysis.
The new EEOC regulations keep with this direction. Two particularly important phrases in the definition of disability have changed: “substantially limits,” and “major life activity.” Taking them in reverse order, the EEOC now defines “major life activity” as including both specific tasks, such as caring for oneself, seeing, hearing, etc., and the operation of major bodily functions, including the function of bodily symptoms or individual organs. The EEOC specifically instructs that the term “major life activity” is not meant to be a demanding standard – and an activity or function can be “major,” for purposes of the regulations, regardless of whether it is “of central importance to daily life.”
The definition of “substantially limits” has been even more dramatically altered. The EEOC now advises that the impairment does not have to prevent, or even significantly restrict, the individual from performing a major life activity in order to limit it. The limitation is considered without regard to mitigating measures (with the exception of ordinary eyeglasses or contact lenses), and can be considered limiting even if it is episodic, in remission, temporary, or affecting only one activity. This determination is to be made on an individualized basis.
As a practical matter, an employer confronted with a disabled employee has both a simpler job and a more difficult job under the ADAAA. The employer need no longer analyze whether an employee is, in fact, disabled – a task probably better left to medical professionals than human resources professionals in any event. Instead, under the ADAAA, employers can focus on the underlying purpose of the ADA: figuring out how best to reasonably accommodate the disabled employee.
It is critical to this process that employers engage in the informal interactive process prescribed by the EEOC. In this regard, the involvement of counsel can be extremely helpful, if not critical, to employers trying to understand precisely what their obligations are. All too often, employers either fail to accommodate employees or “accommodate” them to the extent of impairing their ability to work productively. Counsel can help employers avoid pitfalls. Moreover, involving counsel can help the employer’s business focus on improving its own productivity, rather than defending ADA litigation that could have been avoided.