The ADA Amendments Act of 2008, amending the Americans with Disabilities Act of 1990 to provide broader employee protections, recently passed in the House by a vote of 402-17. The bill is currently before the Senate, but is expected to pass without incident, as it has received substantial bipartisan support. If the Act does pass, the changes to the ADA will be effective January 1, 2009.
Current Prohibitions Under The ADA
The ADA prohibits all employers with twenty-five or more employees from discriminating against employees and applicants on the basis of disability by:
- Limiting, segregating or classifying an individual in an adverse manner on the basis of their disability;
- Using qualification standards, employment tests or other criteria that have the effect of discriminating against an individual on the basis of their disability; or
- Failing to provide reasonable accommodations to an individual with a disability.
A person is disabled under the ADA if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. To assert the ADA’s protection, a disabled employee or applicant must be qualified to perform the essential functions of the position with or without a reasonable accommodation.
Changes Under The ADA Amendments Act
The following proposed changes to the ADA impact employers:
- In determining whether a person’s impairment constitutes a disability, the term “substantially limits” has been clarified to mean materially restricts; that is, the individual has more than a nominal restriction, but less than a severe restriction on a major life activity. This is a lower threshold requirement for employees to establish rights and protections under the ADA.
- The Act provides a non-exclusive list of major life activities, including reading, learning, concentrating, thinking, communicating, working, and major bodily functions (immune system, bladder, reproductive system, etc.). This may further broaden the scope of impairments for which employers should provide a reasonable accommodation.
- The determination of whether an individual has a disability is to be made without taking any mitigating measures (such as medication, medical devices or other additional aids) the individual uses to decrease the severity of the impairment into account. The only mitigating measure that can be considered when determining if an individual has a disability is the use of prescription eye glasses or contacts.
- Individuals that are “regarded as” having a minor or transitory impairment with an actual or expected duration of 6 months or less do not receive protection under the ADA.
- Employers are not required to provide reasonable accommodations to individuals that are only “regarded as” having an impairment.
What This Means For Employers
The proposed changes to the ADA significantly expand the duty of employers to make reasonable accommodations to employees with impairments that they were not required to make before.
In anticipation of the ADA Amendments Act of 2008 passing, employers should consider the following precautions:
- Review current policies and procedures to make sure that you will be in compliance with the changes to the ADA. Remember, should the bill pass the Senate, the changes would be effective January 1, 2009. However, employers should begin preparations now.
- Upon request for a reasonable accommodation, engage in an interactive process with employees or applicants regardless of whether medication, aids, or other mitigating measures may be available to them.
- If an employee or applicant demonstrates a physical or mental impairment that would limit his or her ability to request an accommodation, initiate an informal interactive process to accommodate the employee.
- If you find yourself in a questionable situation concerning an accommodation, or any employment action with respect to an employee with an impairment, please consult with an attorney before taking any action.
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