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On January 1, 2009, significant amendments to the Americans with Disability Act ("ADA") will take effect. These amendments are widely expected to increase disability-related litigation and requests for accommodations within the workplace.

Summary

Congress made numerous changes to the ADA to overcome court decisions that it felt inappropriately restricted the scope and reach of the ADA. These numerous changes will have two primary effects:

1. Many more people will qualify as "disabled" for ADA purposes, and

2. It will be easy for a non-disabled person to assert claims that he/she was "regarded as" disabled.

Because many more people will be afforded ADA protection requests for "reasonable accommodations" from employees will increase significantly. Furthermore, any employee who has an "impairment" (which does not need to rise to the level of a disability) and who suffers an adverse employment action will be able to assert a claim that he/she was "regarded as" disabled.

Employers will need to review their policies and procedures for addressing requests for accommodations and will need to carefully scrutinize any adverse employment decision if the employee has a physical or mental impairment.

Detailed Discussion

Congress has legislatively overruled numerous court decisions that had narrowed the scope of the ADA by making it difficult to qualify as "disabled." Significantly, congress did not define the new boundaries, but instead opined that the scope of the ADA should be "considerably broadened." Congress declares that qualifying as disabled should be a simple, straightforward matter and the focus should shift from whether or not an individual is disabled to whether or not an employer has fulfilled its duties to avoid discrimination and accommodate a disabled employee. It is widely expected that years of litigation will be required to determine the "considerably broadened" scope of the ADA and the extent to which employers must go to satisfy their duties.

I. Qualifying as Disabled

A. Lower Threshold.

Under the ADA, an individual is "disabled" if he/she has: 1) An impairment that 2) Substantially limits 3) A major life activity.

Each of these elements has been impacted by the ADA amendments, the result of which that is now [?] substantially easier for an individual to qualify as disabled.

1. Impairment: Previously, if a person could mitigate a condition, such as through medication, exercise, equipment (e.g. prosthetics, eyeglasses) or otherwise, the condition did not qualify as an impairment. Congress has now specifically stated that mitigating measures (except eyeglasses) can not be considered in determining whether or not a condition constitutes an impairment. In addition, conditions that are "episodic" or in remission may also qualify as an impairment. Numerous conditions that previously would not qualify as an impairment, now will be included, and many more people will be able to satisfy this element.

2. Substantially Limits: This phrase is not defined in the ADA. Previously, courts concluded it meant "significantly restricts," but congress determined that this was too narrow. Congress did not provide a definition of what the phrase means, only that its rejection of the courts' interpretation was intended to "considerably broaden" the ADA. Litigation will be required to explore and determine this new "considerably broadened" scope, but the legislative history makes clear that congress intended to substantially lower the threshold for demonstrating when an impairment is a substantial limitation.

3. Major Life Activity: For the first time, the ADA now specifies many activities that are "major life activities," including walking, sleeping, standing, bending, concentrating, thinking, and working. Congress states that these are merely examples and not an exhaustive list.

More significantly, congress also expressly included "bodily functions" as major life activities. As a result, normal cell growth, and digestive, respiratory, reproductive, bladder and circulatory functions are all now "Major Life Activities" under the ADA.

Congress, expressed expansion of both the "impairment" and the "major life activity" element, combined with congress's instructions to the courts to lower the threshold for qualifying "limitations" will materially increase the number of people who can now qualify as disabled.

B. Effect on Clients

The number of disabled people in the workplace will substantially increase. This will have three impacts on employers:

(1) Because more disability claims will be made, more time will be spent addressing ADA issues it will be more difficult to exclude conditions;

(2) Employee requests for accommodations will increase significantly, and

(3) The number of conditions that an employer will be required to accommodate will increase significantly, and thus, employers will have to become more knowledgeable and flexible in the reasonable accommodation process.

Employers should begin now to consider how they will address these issues. Recommendations include:

• Adopt a clear policy and procedure for employees to follow when requesting an accommodation;
• Consider designating a person primarily responsible for responding to and interacting with employees when an accommodation is requested;
• Develop detailed job descriptions that specify the "essential job functions" for a position in order to evaluate an employee's request for accommodation or seek medical certification concerning the Employee's restrictions;
• Review internal practices to assure that medical matters are kept confidential and related policies, such as family medical leave, worker's compensation, use of accrued vacation and sick leave, etc. are aligned.

II. Regarded as Disabled

A. Standard

A person who is not disabled, may have a claim for discrimination under the ADA if he/she was "regarded as" disabled by an employer. There "regarded as" claims are now easier to assert as a result of two part test that has been adopted. To assert a "regarded as" claim employees now must only show:

(1) That the employee has an "impairment:" and

(2) That he/she suffered an adverse employment action.

Because it is now easier for an employee to qualify a mental or physical condition as an "impairment," numerous non-disabling conditions can form the foundation of a claim. An impairment does not qualify if it is both minor (which is undefined) and transitory (lasts less than 6 months). Thus, a condition which is minor, but lasts more than 6 months, is an impairment for a "regarded as" claim. Similarly, a condition that may last only a few weeks, but is not "minor" will also qualify as an impairment for a "regarded as" claim. Litigation is expected as parties agree over the precise meaning of "minor."

Congress did not define "adverse employment action," but this concept is
well-developed in other areas of civil rights litigation, such as retaliation claims. It is a case-by-case analysis, and any number of changes less than termination or discipline can support a charge, such as reduction in wages, shift changes, reduction in hours, change in job duties, etc.

B. Effect on Clients

The case of asserting "regarded as" claims will require employers to carefully review any job-related action taken with an employee who has requested an accommodation or who is on any form of medical leave, including workers compensation or family medical leave. Unless the employer can clearly show the condition is both minor and transitory, the employee can assert a "regarded as" claim. Employers will then need to prove the legitimate business reason for the action and after evidence of a non-discriminatory reason.

Those employers whose staff is large enough, should consider having all medical leave and accommodation issues addressed by a single person who does not participate in other employment-related decisions, such as discipline, discharge, scheduled changes and the like. This will help build some insulation between those who may be aware of an employee's medical condition and those who make decisions about the employee's work performance.

Conclusion

Employers should be made aware of the increased scope of the ADA and the likely increased burden on them to address and accommodate impairments within the workplace. Employers should clearly understand their right to seek medical certification to support or request for accommodation, but must also be prepared to engage in the interactive process required under the ADA to determine if a reasonable accommodation would allow an impaired employee to perform his/her essential job functions. The environment will necessarily be unsettled for the next several years as cases work through the trial courts and appellate courts and until the courts provide consistent guidance on the various undefined terms and new scope of the ADA.