The latest version of the ADA, the ADA Amendments Act of 2008 (ADAAA,) has greatly expanded the reach of the statute. While the definition of “disability” remains the same, the ADAAA has changed the way that courts interpret the definition. Under the ADA, an individual has a disability and is protected under the statute if the person:
- 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.
The most significant change of the ADAAA is to the “regarded as” prong. Now, an individual is “regarded as” disabled if the person has been discriminated against because of an actual or perceived impairment, even if the impairment does not limit or is not perceived to limit a major life activity. Thus, almost everyone with an actual or perceived impairment will be considered disabled under the ADAAA. As a result, the focus is no longer on whether an employee is disabled, but on whether the employer acted improperly.
Other changes expand coverage under the first prong. For example, the ADAAA specifically requires that courts interpret the phrase, “substantially limits,” broadly. The ADAAA also provides a non-exhaustive list of activities that automatically fall within the definition of “major life activity.” These activities include: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
Additionally, the ADAAA forbids consideration of mitigating measures, such as medications or other aids, in deciding whether an impairment substantially limits a major life activity. These changes overrule court decisions that interpreted the previous version of the ADA.
In light of the changes, it is not surprising that there has been a huge increase in the amount of lawsuits brought under the ADA since the ADAAA went into effect in January of 2009.
So what can employers do to avoid costly litigation under the Americans with Disability Act?
If an employee or job applicant requests an accommodation due to a physical or mental condition, the employer should make a good faith effort to provide a reasonable accommodation. Of course, what constitutes a “reasonable accommodation” is a factual question that will change depending on the circumstances. However, if the employer makes a genuine effort to accommodate the individual, then the employer is more likely to avoid a lawsuit in the first place, or, even if sued, be able to successfully argue that an accommodation would cause undue hardship to the business.
Additionally, employers should make sure to update job descriptions so that they include all essential job functions. Because the ADA only protects individuals who can perform the essential functions of the position with or without reasonable accommodation, employers should have accurate job descriptions available reflecting a position’s essential job functions in order to be able to argue that an individual truly is not qualified for the position.