Question

On September 25, 2008, President Bush signed the ADA Amendments Act of 2008 (ADAAA) into law, overturning a series of decisions by the U.S. Supreme Court under the Americans with Disabilities Act (ADA) and expanding the scope of medical conditions protected by the law. What do these changes mean for employers and employees in conjunction with protection against discrimination based on disability in the workplace? What will employers need to do to comply?

Answer 1

In 2008, the ADA Amendments Act (ADAAA) was passed. This law strengthens protections provided in the Americans with Disabilities Act (ADA) for people with disabilities. The law overturns several Supreme Court decisions and makes clear Congress's intent that the term "disability" should be interpreted more broadly by employers and courts.

"Major Life Activities" Expanded

The ADA defines a disability as an impairment that substantially limits a major life activity. The ADAAA clarifies that major bodily functions, such as cell growth and the proper functioning of the immune, brain, and respiratory systems, also count as major life activities.

This focus on the body's internal functions expands the law to cover serious conditions which have not yet appeared as outward symptoms. For example, many types of cancer wreak havoc on the body in early stages without substantially limiting the patient's ability to breathe, walk, or work. Impairments like these will now be covered without question; in the past, some courts had found that they were not disabilities.

Impairments Don't Have to Be Active

The ADAAA makes clear that episodic impairments (such as asthma) and diseases in remission (as might be true of cancer) are disabilities if they substantially limit a major life activity when they are active. Many serious, even life-threatening diseases wax and wane in intensity or go into periods of remission. This provision ensures that employees with these types of ailments are protected by the ADA.

Corrective Measures Cannot be Considered

Previously, the Supreme Court and many lower courts ruled that corrective measures (such as drug treatments or assistive devices) could be considered when determining whether an employee's condition limited his or her life activities. As a result, employees who controlled their diseases with medication and other treatments were found not to have a disability.

The ADAAA clarifies that, except for ordinary prescription glasses and contact lenses, the corrective measures an employee uses may not be considered in determining whether the employee has a disability.

Clarification of Protections For Those "Regarded As" Having a Disability

The ADA protects not only those who have a disability, but also those who have a history of disability and those whose employers perceive them as having a disability. This last category was intended to protect employees from discrimination based on stereotypes or negative assumptions about their disabilities (for example, that everyone with a mental illness is dangerous, or that someone with a limp won't be able to do a job that requires walking).

In the past, courts have applied different standards to employees seeking to prove these claims. The ADAAA clarifies that an employee needs to show only that the employer regarded him or her as having a physical or mental impairment, not that the employer further believed that impairment substantially limited a major life activity. The law also clarifies that an employee who is making only a "regarded as" claim is not entitled to a reasonable accommodation.

Applicants who are unqualified for a job cannot claim discrimination under the ADA. Under the ADA, to be protected from discrimination in hiring, an individual with a disability must be qualified, which means he or she must meet all requirements for a job and be able to perform its essential functions with or without reasonable accommodations.

An employer is always free to hire the applicant of its choosing as long as the decision is not based on disability. If two people apply for a data entry position for which both speed and accuracy are required, the employer may hire the person with the higher speed and level of accuracy, because he or she is the most qualified.

Reasonable accommodations are intended to ensure that qualified individuals with disabilities have rights in employment equal — not superior — to those of individuals without disabilities. A reasonable accommodation is a modification to a job, work environment or the way work is performed that allows an individual with a disability to apply for a job, perform the essential functions of the job, and enjoy equal access to benefits available to other individuals in the workplace.

Businesses with fewer than 15 employees are not covered by the employment provisions of the ADA. Moreover, a covered employer does not have to provide a reasonable accommodation that would cause an "undue hardship." Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an organization's size, financial resources and the nature and structure of its operation.

If an individual files a complaint of discriminatory treatment, denial of accommodation or harassment under the ADA and does not have a condition that meets its definition of disability, the complaint is dismissed. While claims by people with false or minor conditions may get considerable media attention, the reality is that these complaints are usually dismissed.

Employers can fire workers with disabilities under three conditions:

• The termination is unrelated to the disability or
• The employee does not meet legitimate requirements for the job, such as performance or production standards, with or without a reasonable accommodation or
• Because of the employee's disability, he or she poses a direct threat to health or safety in the workplace.