ADA Amendments Act

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ADA Amendments Act

• How Does It Affect You?
• William Barrett Heath Galloway

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Americans with Disabilities Act of 1990 (ADA)
Overview

• Who is Covered?
• All private sector employers and most
  governmental employees engaged in any activity
  affecting commerce with 15 or more employees
• Qualified Person
• A job applicant or employee with a disability
• Who can perform the essential functions of the
  current job (or a suitable alternative)
• With or without reasonable accommodation

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ADA

• Defining Disability
• Physical or mental impairment that substantially
  limits one or more major life activities
• A record of such impairment or
• Being regarded as having such an impairment

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Substantial Limitation

• To constitute a disability, the limitation of a
  major life activity must be substantial
• An individual with a significant impairment will
  not be protected by the ADA (and the employer is
  not necessarily obligated to follow the act)
  unless the impairment limits one of the
  individuals major life activities in a
  substantial way

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Essential Functions of the Job

• A particular job duty is an essential function if
  the job exists, in significant part, to perform
  that function, and if removing the function would
  fundamentally alter the nature of the job

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Reasonable Accommodation

• Making existing facilities readily accessible to
  and usable by persons with disabilities
• Job restructuring, modifying work schedules,
  reassignment to a vacant positions
• Acquiring or modifying equipment or devices,
  training material, or policies
• Employer is required to make reasonable
  accommodation to known disability of qualified
  applicant or employee if it would not impose an
  undue hardship

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ADA Amendments Act (ADAAA)

• Background
• Amends the ADA
• Effective January 1, 2009
• Overturns several employer-friendly Supreme Court
  decisions

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Key Provisions of ADAAA

• Provide a broader protected class by
• Prohibiting consideration of mitigating factors
• Expanding definition of key terms within
  disability definition
• Including non-exhaustive list of covered major
  life activities and
• Overturning controversial Supreme Court decisions
  that narrowed scope of ADA protection

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Prohibit Inclusion of Mitigating Measures

• Sutton v. United Airlines, 527 U.S. 184 (1999)
• Identical twins with visual disability that could
  be corrected were denied pilot positions
• Sutton not disabled due to prescribed medication
  (corrective eye measures)
• Under Sutton, employers could consider mitigating
  measures in determining disability

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Prohibit Inclusion of Mitigating Measures

• Congress rejects Sutton requirements that whether
  an impairment substantially limits a major life
  activity is to be determined with reference to
  the ameliorative effects of mitigating measures
• Under the ADAAA, employers cannot factor in
  mitigating measures (medication, prosthesis or
  hearing aid) when determining disability

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Redefining Disability

• Toyota Motor Mfg., Kentucky, Inc. v. Williams,
  534 U.S. 184 (2002)
• Williams claimed disability due to her Carpal
  Tunnel Syndrome
• Court denied claim she must show an impairment
  that prevents or severely restricts her from
  doing activities that are of central purpose to
  most peoples daily lives, regardless of whether
  the unaccommodated impairment prevents her from
  performing essential job functions

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Redefining Disability

• ADAA rejects Toyota standard that the terms
  substantially and major need to be
  interpreted strictly to create a demanding
  standard for qualifying as disabled
• Under the ADAAA the definition of disability
  shall be construed in favor of broad coverage
  under the Act, to the maximum extent permitted by
  the Act
• An impairment that is episodic or in remission
  is a disability if it would substantially limit
  a major life activity when active

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Substantially Limits

• Congress rejects current EEOC ADA regulation that
  defines term substantially limits as
  significantly restricts
• EEOC directed to revise its regulation to define
  substantially limits consistent with finding
  and purpose of ADAAA
• Requires a lower degree of functional limitation
  than the previous Standard

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Substantially Limits

• It is to be construed Broadly, in favor of
  Expansive Coverage
• Still an individual Assessment in each case
• Determination of limitation is made without
  considering mitigating measures such as
  medication or hearing aids
• Only one exception ordinary eyeglasses or
  contact lenses

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New Definition of Major Life Activities

• Major life activities defined to include caring
  for oneself, performing manual tasks, seeing,
  hearing, eating, sleeping, walking, standing,
  lifting, bending, speaking, breathing, learning,
  reading, concentrating, thinking, communicating,
  and working

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New Definition of Major Life Activities

• Definition also includes operation of major
  bodily functions, including but not limited to
  immune system cell growth digestive, bladder,
  and bowel functions neurological and brain
  functions respiratory and circulatory functions
  endocrine functions reproductive functions

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Regarded as Prong

• Under ADAAA- individual is regarded as disabled
  if subjected to discrimination because of an
  actual or perceived impairment whether or not
  the impairment limits or is perceived to limit a
  major life activity
• Under ADAAA- regarded as does not apply to
  impairments that are transitory and minor
  (defined as impairment with actual or expected
  duration of 6 months or less)

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The ADAAA In Action

• Formerly there was a list of impairments that
  would consistently, sometimes, or usually
  not be disabilities
• Final regulations provide nine (9) rules of
  construction to guide analysis
• By applying the nine (9) rules, some impairments
  will virtually always be disabilities
• Examples epilepsy, diabetes, cancer, HIV,
  Bipolar disorder

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Nine (9) Rules of Construction

• Substantially Limits is construed broadly
• An impairment is a disability if it substantially
  limits the ability of an individual to perform a
  major life activity compared to most people.
  Need not prevent or significantly restrict the
  activity
• Primary focus in cases is the question of covered
  employees meeting their obligations and whether
  discrimination has occurred. So substantial
  limitation should not require extensive analysis

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Nine (9) Rules of Construction

• Determination of substantial limitation is an
  individual assessment
• Comparison to most people usually will not
  require scientific, medical, or statistical
  analysis. Such evidence is not prohibited,
  however
• Determination of substantial limitation made
  without considering mitigating measures

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Nine (9) Rules of Construction

• Impairments that are episodic (migraines) or in
  remission (cancer) can be substantially limiting
  as they would be when active
• Individual need only be substantially limited in
  one major life activity to be disabled
• No minimum duration. Impairments lasting fewer
  than six (6) months may be substantially limiting

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Caselaw Examples

• Gibbs v. ADS Alliance Data Systems, Inc.
• Retail credit card customer service, collections
• Plaintiff or sales/service rep
• Carpal Tunnel Syndrome injury sustained at her
  second job at CVS Pharmacy and due to repetitive
  work at ADS
• Medical release for full duty after 6 months
• Plaintiffs burdens met

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Caselaw Examples

• Sibilla v. Follett Corp.
• Plaintiffs (two sisters) alleged that Follett (a
  bookstore chain) regarded them as disabled
  because they were very overweight
• Case dismissed before trial (summary judgment)
• Evidence was insufficient to show Follett
  regarded the sisters as overweight/obsese, or
  that Follett regarded being overweight as a
  disability
• Case note ADAAA regarded as prong no longer
  requires a plaintiff to prove their impairment
  limits or is perceived to limit a major life
  activity

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Caselaw Examples

• Moloney v. Home Depot USA, Inc.
• Plaintiff alleged he was terminated from his
  sales associate position due to his mental
  disability (low IQ, educationally impaired)
• Case turned on a determination of whether his
  supervisors were aware of his disability
• Store and its managers were informed of his
  impairment during hiring. Direct Supervisors
  knew he lived in a group home, recognized he was
  slow, and had trouble focusing
• Termination after 10 years of generally positive
  reviews for poor customer service was therefore
  a question for the jury to decide

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Impact of ADAAA

• Disability threshold will be much lower
• Cases will focus on
• Discrimination analysis
• Has employer reasonably accommodated individual

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Impact of ADAAA on Employers

• Harder for businesses to defend claims due to
  increased protected class
• Expect to see dramatic increase in accommodation
  requests and litigation
• Increased exposure to significant damages

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Best Practices

• Given the ADAAA, many Americans will meet the
  definition of disability qualify for the Acts
  protection
• Employers need to reevaluate current policies and
  hiring practices
• Companies should train HR professionals,
  managers, supervisors, etc., on the importance of
  the ADAAA
• Management must exercise greater care when making
  personnel decisions for employees with health
  impairments or medical conditions

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Questions?
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For Further Information Contact

• William Barrett at wbarrett_at_williamsmullen.com
• or
• Heath Galloway at hgalloway_at_williamsmullen.com