Featured Blogger - Jonathan Mook: The ADA Amendments Act: Final Thoughts and Compliance Tips

Featured Blogger - Jonathan Mook: The ADA Amendments Act: Final Thoughts and Compliance Tips

Over the last week, I have discussed a number of the major changes to federal disability law resulting from the enactment of the ADA Amendments Act of 2008.  The expansion in the definition of disability under the statute will impact both employers and employees alike as the number of persons entitled to the statute’s protection increases.

  To listen for free to my podcast on the ADA amendments, click here.

Just as important as what has changed as a result of the ADA Amendments Act is what has not changed.  In general, the other requirements of the statute remain the same.  As before, not only are employers prohibited from discriminating against individuals with disabilities in the traditional sense of discrimination, but employers also may need to make reasonable accommodations to enable persons with disabilities to perform the essential functions of the job.

The one caveat to this statement is that an employer need not provide reasonable accommodations to persons who are regarded as disabled.  Prior to the enactment of the ADAAA, a number of courts had held that reasonable accommodation applied to all persons who come within the definition of disability, be they actually disabled, have a record of a disability or be regarded as disabled.  The ADAAA specifically rejects this interpretation.  The new legislation makes clear that persons who are regarded as disabled are not entitled to reasonable accommodation.

Although not expressly stated, it also is reasonable to assume that individuals who have a record of a disability, but are not actually disabled, likewise are not entitled to a reasonable accommodation.  That only makes sense because Congress’ rationale for including the reasonable accommodation requirement in the statute is to help persons whose present physical or mental impairment may inhibit their ability to perform the essential job functions.  If one does not have a present, actual disability, the rationale that Congress had for imposing the reasonable accommodation obligation falls away.

So, what is going to be the impact of the ADA Amendments Act?  Clearly, as of January 1, 2009 it will be much easier to establish that a person is covered under the statute as being disabled.  No longer will plaintiffs have to jump through the various hoops that the Supreme Court and the lower courts had imposed.  Under the new ADAAA definition, many more people will be able to establish that they come within the definition of having an actual disability.  Even if a plaintiff can’t make this showing, if that plaintiff was subjected to a job action by an employer due to an actual or perceived impairment, the plaintiff most definitely will be able to establish that he or she, at least, was regarded as disabled.  In other words, the “regarded as” disabled prong of the ADA definition of disability will become the kitchen sink prong.  Even if one cannot show coverage under the first two prongs of the ADA definition of disability, in most instances, the person will be able to come within the third prong of the definition.

What does this mean for employers?  In the past, employers were able to defend disability discrimination cases primarily on the basis that the plaintiff couldn’t establish the first element of an ADA claim, that is, that he or she was disabled.  Now, with this defense no longer a viable one in many cases, an employer will need to be able to defend an employment action on the grounds that the person’s disability was not a motivating factor in the employment decision or, even if it was, that the individual could not perform the essential functions of the job with or without reasonable accommodation.  Hence, the focus will start to switch from “no disability” to “no reasonable accommodation.” 

Bear in mind, of course, that an employer need not provide every accommodation that a disabled employee may want or desire.  The original ADA does contain the escape hatch that an employer need not provide a reasonable accommodation if it would cause an undue hardship.  To date, there have not been very many cases addressing when a hardship in providing an accommodation becomes “undue.”  With the prospect that an increased number of plaintiffs will be able to overcome the “disability,” hurdle it is likely that in the future, courts will need to confront the issue of “undue hardship” and begin to put some flesh to the bones of this term.

In the past few years, we have seen an uptake in the number of employment class action lawsuits being filed by the plaintiffs’ bar.  In the past, it has been difficult to certify as a class action disability discrimination cases because of the strict scrutiny that the courts had employed in determining whether or not a plaintiff met the definition of disability.  With the advent of the ADAAA, it will be much easier for plaintiffs to establish the disability aspect of an ADA suit and, hence, it is likely that we shall see disability discrimination class actions being filed.  This particularly will be so where the lawsuit is challenging an employer’s uniformly applied job qualification standard that has a tendency to screen out or disqualify persons with various types of disabilities.

Finally, beware of state laws.  Although under the federal ADA , there is a cap on compensatory and punitive damages, many state fair employment practice or disability discrimination statutes doe not contain such a cap.  Now that Congress has amended the ADA, we may start to see state legislatures amending their disability discrimination statutes to follow the more lenient federal definition.  If that is the case, then we may see an increased number of plaintiffs’ lawyers filing disability discrimination suits in state court under state laws prohibiting discrimination on the basis of disability without any limits on damages such as found under the federal ADA.

The prospect of an increased number of disability discrimination suits in both federal and state courts certainly counsels employers to take steps today to prepare for what may be a surge of ADA lawsuits.  Many employers initiated ADA training when the ADA was first enacted almost twenty years ago.  Much of that training is still applicable today, although managers will need to be retrained to think broadly in terms of the new expanded ADA definition of disability. 

Employers who have existing ADA policies, job descriptions and other personnel manuals should review them in order to ensure that they are ADA compliant.  If for some reason you don’t have ADA policies in place, it’s a good idea to have them.

Some other steps that employers can take to prepare for the new ADA are the following:

  • Institute an ADA refresher course to remind all managers that employees with disabilities may need accommodations to help them perform job functions.
  • Designate person in HR organization to handle accommodation requests and engage in interactive process;
  • Have contact information for medical consultants (physical and psychological/psychiatric impairments).  Have consultants evaluate medical information provided by an employee.
  • Ask employee to suggest possible accommodations and assess each accommodation suggested.
  • Document interactive reasonable accommodation process.  Make sure that you close the loop.
  • Take action to avoid workplace tensions that can develop when some employees receive accommodations and some do not.

These are just some of the ways that employers can seek to avoid the time and expense of defending ADA lawsuits.  In any situation, of course, the old adage “an ounce of prevention, is worth a pound of cure” certainly applies – particularly, when lawsuits are in the offing.

I’d be interested in hearing your thoughts and suggestions as to ways in which ADA lawsuits can be avoided.  One of the main purposes of the original Americans with Disabilities Act was to enable persons with disabilities to participate fully in our society and to become effective and productive employees.  We all have an interest in ensuring that all persons in this country, both disabled and non-disabled alike, have the opportunities and the means to develop their abilities to the fullest extent possible and to fulfill their dreams.  The ADA was enacted in order to help accomplish this goal, and with the constructive support of both employees and employers there should be no reason why this will not be the case.

  • To read my blog on The ADA Amendments Act: What It Means for You, click here.
  • To read my blog on The ADA Amendments Act: Expanding the Definition of Disability, click here.
  • To read my blog on The ADA Amendments Act: What Are Major Life Activities and What Is “Substantially” Limiting? click here.
  • To read my blog on The ADA Amendments Act: The Product of a Remarkable Bi-Partisan Coalition, click here.

 Publisher's Note: To purchase Jonathan Mook's pamphlet on the "ADA Amendments Act of 2008", call LexisNexis Customer Service at 1-800-833-9844. The ISBN is 978-1-4224-7105-0. Price is $96, effective through 12/31/2009.