September 24, 2008

This is Utah SHRM Legal-mail no. 2008-21 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).  This update is best viewed in a HTML format.  Please reply with your name and “UNSUBSCRIBE” in the subject field if you no longer wish to receive this message.

CONTENTS:

-  MAJOR REVISIONS TO THE AMERICANS WITH DISABILITIES ACT (ADA)
-  MITIGATING MEASURES NO LONGER RELEVANT UNDER THE ADA
-  ADA MAJOR LIFE ACTIVITIES LIST EXPANDED
-  CONSTRUCTION OF ADA STATUTE TO FAVOR EMPLOYEES
-  REVISIONS TO “REGARDED AS” DISCRIMINATION UNDER ADA
-  NEW ADA REGULATIONS AND EFFECTIVE DATE

MAJOR REVISIONS TO THE AMERICANS WITH DISABILITIES ACT (ADA):  Congress has approved, and President Bush seems poised to sign into law, major changes to the ADA, the ADA Amendments Act of 2008.  The changes are designed to make it easier for someone with a physical or mental impairment to fit within the definition of disabled under the ADA.  Unlike most of the other protected employment classes-- such as race, gender and age—it is not always clear whether or not a person falls within the protected class of disabled.  An employer must first figure out if someone is disabled before the ADA applies to that person.  During the fifteen-plus years since passage of the ADA, many courts, including the United States Supreme Court, have foreclosed coverage of the law to persons deemed not to fit within the definition of disabled.  Thus, in most ADA court cases, employees/plaintiffs have been found not to be disabled.  The ADA Amendments Act of 2008 seems designed primarily to reverse all those decisions and in fact, the new Amendments Act noted these decisions are overturned by legislative action.  Details outlined below.

MITIGATING MEASURES NO LONGER RELEVANT UNDER THE ADA:  Under a 1999 Supreme Court decision, employers were required to consider mitigating measures when determining whether someone was disabled under the ADA and thus covered by the ADA’s requirements.  For example, someone who took drugs to successfully control epilepsy or diabetes would not be disabled because of those impairments.  The ADA Amendments Act of 2008 changes this result.  It precludes employers from considering the following mitigating measures when determining if a disability exists: “medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.”  Ordinary eyeglasses and contact lenses still can be considered when determining if visual impairments are disabilities.  The Amendments Act also states that someone is still deemed disabled, even though his/her particular impairment is episodic or is in remission, so long as the person would meet the definition of disabled when the impairment is active or not in remission.  These revisions may expand the types of conditions that are covered by the ADA and they may increase the circumstances where employers must deal with ADA issues.

ADA MAJOR LIFE ACTIVITIES LIST EXPANDED:  The ADA continues to define disability as a physical or mental impairment that substantially limits a major life activity.  However, the ADA Amendments Act of 2008 adds to the nonexclusive list of major life activities, which now reads as follows: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”  Moreover, the new law adds to the definitional mix the concept of major bodily functions, stating that a major life activity also includes: “operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”  These revised definitions probably will make it easier for persons to claim that their particular impairment rises to the level of a disability.

CONSTRUCTION OF ADA STATUTE TO FAVOR EMPLOYEES:  The ADA Amendments Act of 2008 plainly tells courts that standards imposed by the courts have been too high and that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”  In particular, Congress has flatly rejected the Supreme Court’s conclusion that to be substantially limited in a major life activity, an employee must show he/she has “an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”  Some legal commentators have noted that this type of statutory rebuke of the courts may make future courts less willing to dismiss ADA claims without a trial.  This could make it much more expensive for employers to defend ADA claims.

REVISIONS TO “REGARDED AS” DISCRIMINATION UNDER ADA:  If an employer perceives or regards someone as disabled and discriminates against the person, then the ADA is violated even if the person is or is not really disabled.  For example, if your employer won’t let you have a given job because it perceives you won’t do it well due to a seizure you have, you have an ADA claim even if your seizure impairment does not amount to a disability.  Under the new law, this provision does not apply to transitory impairments (i.e., those with an expected duration of six months or less).  The ADA Amendments Act of 2008 also clarifies that an employer need not provide any accommodation to a person who is only covered by the ADA by virtue of the “regarded as disabled” provisions.  In other words, to get a reasonable recommendation, an employee must actually be disabled as defined by the ADA.  Aren’t you glad Congress cleared all that up?

NEW ADA REGULATIONS AND EFFECTIVE DATE:  The Equal Employment Opportunity Commission (EEOC) likely will soon issue new regulations to help us all understand these new ADA statutory provisions.  The ADA Amendments Act of 2008 takes effect on January 1, 2009.  It should be a Happy New Year.

Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com
  
Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.