It has been three years since Congress passed the Americans with Disabilities Act (ADA) Amendments Act of 2008. The law, sometimes known as the ADAAA, went into effect at the start of 2009, yet little changed right away. Why? Because the Equal Employment Opportunity Commission (EEOC), charged with creating regulations and interpreting the ADA Act Amendments, did not complete that work until earlier this year.
Those regulations were finally completed and took effect just before summer 2011. The ADAAA and the new regulations did not change the definition of "disability" that existed under the original ADA. To be disabled today, as before, an employee must have a physical or mental impairment that substantially limits one or more major life activities, a record or history of such impairment, or be regarded by the employer as disabled.
The predominant question used to be whether the employee was "disabled" under this definition. Now, however, the ADAAA and the new regulations take disability claims in a whole new direction.
First and foremost, the new regulations define "major life activities" - a key component of the definition of disability - to include actions such as sitting, reaching, lifting, bending, learning, reading, concentrating and thinking, in addition to activities long considered major life activities, such as seeing, hearing, eating, sleeping, walking, standing, speaking, breathing, communicating, interacting with others, caring for oneself, performing manual tasks and working. Even more, "major life activities" now include medical situations affecting body systems such as the neurological, musculoskeletal, respiratory, cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine systems. Therefore, a skin disorder or a reproductive problem may constitute disabilities.
Although these are not trivial medical matters, it is easy to see from the point of view of disability discrimination that this is a vast expansion of who will ultimately be considered disabled under the ADAAA. Initial discussions with some employers even suggests that more employees may be substantially limited in one or more of these major life activities or major body systems than the number of employees who are not substantially limited in any of these areas. This certainly turns on its head the ADA's idea of protecting a smaller group of employees who were historically mistreated as compared to the majority of other non-"disabled" employees. Now, the "disabled" employees may be the vast majority.
Second, the ADAAA and its new regulations move away from the notion originally central to disability law that each situation must be considered individually and on its own facts and circumstances to prevent discrimination. While that is still the stated premise, it is undermined by the EEOC's declaration that certain impairments will "virtually always" meet the definition of disability, including autism, deafness, blindness, cancer, diabetes, epilepsy and numerous mental illnesses. According to the EEOC, it essentially no longer matters if that employee with epilepsy can perform the job just as well – or even better – than his peer without epilepsy. The epileptic employee is "virtually always" disabled.
Likewise, the new regulations require employers to evaluate whether employees are disabled without taking into account "mitigating factors" like medications used to address illnesses or conditions. Because of this, a diabetic employee who takes insulin and functions just like everyone else must be viewed based on how he or she would function without taking insulin.
In a similar fashion, the new regulations also require employees with dormant or episodic medical conditions to be viewed by their employers for ADAAA purposes as if the condition is active. Thus, while an employee's cancer may be in remission, it is still considered for purposes of the ADAAA.
It seems that under the new ADAAA and the EEOC's regulations, employees are being seen as disabled more by the law and the regulations than by their employers. If you think this makes little sense and seems backwards, you are not alone.
These changes and others to the law have made the likelihood that any employee will be considered "disabled" under the ADAAA very high. Going forward, no longer will there be much of a battle over whether an employee is "disabled" – whether he or she actually has a physical or mental impairment that substantially limits one or more major life activities, has a record or history of such impairment, or is regarded as disabled. That becomes a minor matter, almost always decided in favor of finding the employee disabled.
Instead, the focus shifts almost exclusively to the other part of the ADAAA and the ADA before it: figuring out if there is a reasonable accommodation that can and needs to be made for the "disabled" employee. Therefore:
- Companies will spend more time on these reasonable accommodation considerations and employers will need more individuals trained and available to handle these questions.
- What is "reasonable" when it comes to making accommodations is also likely to be expanded over time, as the more accommodations an employer considers and makes, the more others become or look more reasonable (or at least, the harder it is for an employer to prove that any particular accommodation is so burdensome, expensive, disruptive or impossible so as to be "unreasonable").
- Any prudent, let alone risk-averse, employer will have to carefully consider every and all requests for accommodation and agree to make many of them, or face being hauled into regarding what was "reasonable" for the employer to have done for the "disabled" employee.
It looks like a difficult, frustrating and bumpy road ahead, but it is the path that employers must follow. Those who recognize it, prepare for it and decide to deal with it head on are likely to make the trip in better shape than those who refuse to follow the path, or who are only dragged down it, kicking and screaming.