Revise policies related to the ADA, discrimination, and complaint procedures

 Establish procedures for responding to requests for reasonable accommodations
      and how to document the interactive process

 Revise medical certification forms

 Make sure job descriptions spell out essential job functions

 Train supervisors and managers on the new law and how to handle requests for
      accommodation

 Consider diversity training for all employees that includes disability

 Be prepared for detailed regulations in 2009

Currently, under the ADA, disability is defined as:

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

Over the years, the courts narrowed this definition. This included limiting what is considered a major life activity and how impairment was defined. For instance, a person with uncontrolled diabetes might be a person with a disability but if it is controlled with medication, exercise, and diet, those mitigating factors would be considered and the person would not be protected by the ADA. Likewise, the court limited what would be considered a major life activity and when it would be considered "substantially" limited.

The amendment overturns court decisions and states that the ADA is intended to provide “a broad scope of protection” for employees. Mitigating measures such as medications, and other interventions that manage a disease or disability must be ignored. As a result, more employees will be covered.

Impact on Employers — Policies and practices will have to be modified. Employees who would not have been protected will now be covered by the ADA and employers will need to document and engage in interactive discussions to determine what if reasonable accommodations are necessary.

The end result will likely be an increase in ADA claims and lawsuits and, because the definition of disability is very broad, it is less likely that an employer will be able to get out of the case on a motion to dismiss or summary judgment. Litigation will focus on whether the employer met its obligations to provide a reasonable accommodation and/or whether there was discrimination, and away from whether the employee is disabled under the law. This means costly trials when claims are made.

The Act provides that the determination of whether an impairment substantially limits a major life activity, such that it rises to the level of a disability, must be made without considering the ameliorative effects of mitigating measures. Examples of mitigating measures include medication, hearing aids or cochlear implants, and prosthetic devices. Ordinary eyeglasses and contact lenses would not be considered.

This provision overturns a 1999 U.S. Supreme Court case holding that mitigating measures had to be considered in determining whether a the impairment substantially limited a major life activity.

Impact on Employers — More employees will be covered and in many cases, conditions will be covered disabilities that are not readily apparent to employers.

The Act adds to the ADA examples of major life activities, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activity also includes the operation of major bodily functions, such as functions of the immune, respiratory, and neurological systems. The Act also makes clear that an impairment that substantially limits one major life activity need not limit others to be considered a disability. The legislation also lowers the bar for ADA coverage by rejecting a previous Supreme Court decision and a current Equal Employment Opportunity Commission regulation that construe “substantially limits” to mean significantly or severely restricted.

Impact on Employers — More employees will be covered and in many cases, conditions will be covered disabilities that are not readily apparent to employers.

The legislation clarifies the standard for being "regarded as disabled." An individual will have to show only that he or she was discriminated against because of an actual or perceived impairment, even if the impairment doesn’t limit or isn’t perceived to limit a major life activity. Impairments that are transitory or minor (that is, with an actual or expected duration of six months or less) won’t qualify for “regarded as” protection.

Under the old interpretation, an employee had to prove that an employer regarded the employee as being substantially limited in a major life activity because of a qualified disability. Under the new law, the employee only has to show that the employer believed he or she had a mental or physical impairment. The potential for claims under this definition is endless.

Impact on Employers — The potential for claims from employees who believe they were regarded as disabled will increase exponentially. It will be critical for employers to establish policies and procedures for supervisors in handling situations that might be related to a disability. Training will be critical!

There is some good news on this front for employers. "Regarded as disabled" does not include employees with a “minor” impairment, or a “transitory” impairment defined as lasting 6 months or less. In addition, an employee who says he or she is being regarded as disabled is not entitled to a reasonable accommodation.

If an employee has an impairment that when active would substantially limit a major life activity, then he or she is disabled and protected under the new ADA even if in remission or when not suffering from an episode. This might include diseases such as Multiple Sclerosis, Lupus, Epilepsy or a seizure disorder.

Impact on Employers — Employers need to be prepared to engage in the interactive process with a greater number of employees. Training and documented procedures will be important.

Under the amendment, the EEOC has authority to issue binding regulations and interpretive guidance to further flesh out the statute.

Impact on Employers — Look for comprehensive regulations in 2009!