ADA Amendments Act: What Can Employers Expect? 

(Published December 22, 2008)

 

The ADA Amendments Act of 2008 (ADAAA) goes into effect on January 1. What will the fallout be for employers? We asked Charles P. Stevens, Esq., to look into his crystal ball. Stevens is a partner with Michael Best & Friedrich LLP (Milwaukee, WI), and he presented the AHI webinar ADA Amendments Act Of 2008: What Employers Must Do To Get In Compliance.

 

Note: To get a complete overview of the ADAAA, download our free report.

 

Who Will Be Considered Disabled Under The ADAAA? 

 

The ADAAA specifies that major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, communicating, plus several major bodily functions. Stevens speculated that the ADA may now cover individuals with ADHD, back problems, insomnia, and anorexia — "conditions that may or may not interfere with work."

Since episodic impairments now qualify for ADA protect, an employee with irritable bowel syndrome, which only acts up occasionally, might now be covered. Stevens also mentioned that migraine headaches, which used to be too transitory to be covered, could also meet the definition of a covered disability.

 

He also said that the major life activity of working could conceivably include commuting as a subcategory, so that employees who have difficulties getting to and from work might receive ADA protection.

Stevens brought up the 1998 U.S. Supreme Court ruling, Bragdon v. Abbott, in which an individual was found to be disabled because her HIV status substantially limited her ability to reproduce. He pointed out that Congress did not add reproductive functions to the main list of major life activities, but reproductive functions are covered under major bodily functions. When asked to elaborate, he admitted, "We are not sure how to perceive that. Is an employee recognized as being entitled to protection under the ADA such that he or she may take time off from work, as a required reasonable accommodation, to address fertility issues? We need to see what the courts do."

There could be good news for employers regarding conditions that may now not be covered. While the ADAAA's prohibition on considering mitigating measures when evaluating the presence of a disability opens the floodgates on protected individuals, it could also close one door. Under the original ADA, a disability could be caused by the side effect of a mitigating medication; Congress may have removed this as being considered a disabling condition, Stevens noted.

 

We'll Have To Wait And See 

 

The bottom line is that "the new standard will make it harder for employers to argue that an employee is not disabled. Consequently, the employer will need to focus its attention on whether the employee's disability prevents him or her from performing the job, with or without a reasonable accommodation," Stevens emphasized. "The more you engage in interactive dialogue, the more deference you'll have from the courts."

 

Though the ADAAA lays out a framework for how Congress wants the courts to interpret the ADA, the courts themselves will ultimately decide how far-reaching the changes will be, said Stevens.

 

Don't expect clarifying regulations from the Equal Employment Opportunity Commission (EEOC) any time soon, Stevens added. While Congress expects the EEOC to revise its regulations defining "substantially limits," Stevens pointed out that the EEOC is not actually required to come out with a new version. Said Stevens: "Sometimes an agency will hesitate to provide regulations when uncertainty works in favor of a broad interpretation of the law. That is absolutely the case here. I cannot imagine EEOC regulations favoring employees any more than the statute has favored them, i.e., regulations would largely only clarify in favor of employers. Therefore, unless courts start issuing decisions that reveal a pro-employer direction or invalidation of Congress's intent to broadly favor employees with these changes, I do not expect regulations to be promulgated any time soon."

 

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