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Three Years After Amendment, It’s Still a New Day for the ADA

The law that amended the Americans with Disabilities Act (ADA) was signed in September 2008, and although more than three years would seem sufficient to digest the change a new law brings, the regulations for the ADA Amendments Act (ADAAA) weren’t effective until May 24, 2011. So HR professionals and attorneys alike in many cases haven’t gotten their arms around how much the new Act has changed the game.

Plus the law has resulted in relatively few court decisions so far, so there’s little guidance for employers in the way of court precedents. But that doesn’t mean there aren’t answers to questions employers may be asking.

Jonathan Mook, a nationally recognized authority on the ADA and a founding partner in the DiMuroGinsberg law firm in Alexandria, Virginia, and Audra Hamilton, an attorney in Tulsa, Oklahoma, also well-versed in the ADA, point out at least one thing is clear: The new law has greatly expanded who is covered.

Here are a few emerging issues employers should be aware of from Mook and Hamilton’s presentation at the Advanced Employment Issues Symposium held October 6 and 7 in Nashville, Tennessee:

  • Although it’s clear the ADAAA isn’t retroactive, that doesn’t mean an employer is off the hook in considering the need for accommodations. The law became effective January 1, 2009. Cases older than that are analyzed under the old law. But Mook points out that some employees who weren’t disabled under the old law may now fit the definition and be entitled to accommodations.
  • A potentially tricky issue for employers involves the expanded list of major life activities. Under both versions of the ADA, a person has to be substantially limited in one or more major life activities to be considered disabled. The nonexhaustive list of major life activities included in the new law plus guidance from the Equal Employment Opportunity Commission (EEOC) features such things as concentrating, communicating, interacting with others, neurological activity, as well as various bodily functions, including compromised immune systems and normal cell growth. “If you put the statutory list with the EEOC’s list, many more people will be covered than were in the past,” Mook says. He adds that the changes mean employers will need to rely on medical consultants now more than ever.
  • Another issue to watch is how people who were identified as having learning disabilities in the education system will be affected by the ADAAA when they enter the workplace. Mook said under the old law, courts often held that people diagnosed with dyslexia or some other disability in school weren’t considered disabled in the workplace. Under the new law, however, that might be different, so they may be entitled to accommodations.
  • Employers are almost certain to see an increase in claims related to chronic illnesses, Hamilton says. Under the old law, someone with cancer that was in remission usually wouldn’t have been considered disabled. That’s not true anymore. Also, chronic illnesses with periodic flare-ups, such as migraines, are now much more likely to be covered. In the past, an employee suffering from infrequent migraines would have been less likely to fit the disabled definition because the illness was infrequent and of short duration. Under the ADAAA, however, such an employee likely would be considered substantially limited in a neurological activity.
  • Although temporary, nonchronic illnesses or injuries aren’t considered disabilities under the ADAAA, EEOC regulations also state that the effects of an impairment lasting or expected to last six months or less can be substantially limiting under the law. Hamilton says “the lip service” is that temporary, nonchronic ailments aren’t covered, but employers can expect the EEOC to be very aggressive.

Attorney Michael Barnsback will discuss the important emerging trends involving the ADA and reasonable accommodations at the Advanced Employment Issues Symposium in Las Vegas on November 17 and 18, 2011.