The ADAAA has been signed–what’s an employer to do?

John GarnerDMEC News

Now that the President has signed the Americans with Disabilities Act Amendments Act (ADAAA), what should employers do?  The ADAAA is effective January 1, 2009, so employers have just three months to be ready to comply.  This means employers need to train managers and supervisors about what has changed.  It is probably also a good time to provide a general refresher on ADA itself.

The definition of employer has not changed, so if you were covered by the ADA before, you still are and if you were not, you’re still not.  If you have 15 or more employees, you must comply with the ADA and ADAAA.

One of the main things to know about the ADAAA is that it broadens the definition of disability.  Many more people will be considered disabled now than in the past.  One of the stated purposes of the legislation is to overturn recent court cases that have narrowed the definition of who is considered disabled for purposes of ADA protections.

The ADAAA defines a disability as:

  • a physical or mental impairment that substantially limits one or more major life activities;
  • a record of such an impairment; or
  • being regarded as having such an impairment.

The rule about being regarded as having an impairment does not apply to impairments that are transitory and minor.  Transitory means an impairment with an actual or expected duration of six months or less.

Until the ADAAA, “major life activities” were not defined.  The ADAAA defines major life activities by providing something akin to a laundry list.  Specifically, the new law says major life activities, include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.  The law goes on to say that a major life activity also includes the 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.

The new law includes rules of construction that specifically state:

  • The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.
  • An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
  • An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  • The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.

The rule gives the following examples of mitigating measures:  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 or oxygen therapy equipment and supplies.  Mitigating measures also include use of assistive technology, reasonable accommodations or auxiliary aids or services or learned behavioral or adaptive neurological modification.

The ADAAA does include a provision that makes it clear that if someone is protected under the Act only because they are regarded as having a disability, no accommodations need to be made for that person.

This new law means that if someone has epilepsy or diabetes that is under control with medication, they can still be considered disabled for purposes of the ADA’s protections.  The same is true of someone with multiple sclerosis that is in remission.

It is time for employers to start training their supervisors and managers about these new rules.  The ADA requires an interactive process and the people who need to implement that process need to understand just who is covered by it.  It is also a good idea to get input from an attorney with expertise in the area of employment law.

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