ADA Changes for 2009
January 8th, 2009 | By Paul ChernerIf you thought that there were many HR changes in 2008, hold on to your seat for 2009 – it will be a wild ride.
As of January 1,2009, the ADA Amendments (“ADAAA”) became effective. Congress intends this law to broaden the scope of protection by the ADA and to reverse several U.S. Supreme Court cases interpreting the ADA.
The ADAAA expands the definition of “disability” and lists some of the “major life activities” which, if one or more of them are “substantially limited”, result in a finding that an individual has a disability within the meaning of the ADA. This new law also specifies certain bodily functions that are to be included within the definition of “major life activity.” It will be substantially easier for individuals to prove that they have a disability covered by the ADA. Indeed, Congress, in passing the ADAAA, stated that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”
Under the new law, a disability is determined without regard to any mitigating measures, such as insulin, medication, artificial limbs, etc. The only mitigating measures that may be considered are ordinary eyeglasses and contact lenses.
The ADAAA clarifies that an impairment that is episodic or in remission is still a disability if it would substantially limit a major life activity when active. It also broadens the sitiuations where an individual will be protected from discrimination if they are “regarded as disabled” because of an actual or perceived impairment, unless that impairment is transitory or minor.
What does all this mean for employers?
* many more people will be found to have a “disability” protected by the ADA
* employers should educate their managers about the expansion of this law
* employers should designate an individual within the organization, who has had special training, to be the ADA officer
* if an individual has a disability, the next step is to determine whether they can perform the “essential functions” of the job, with or without reasonable accommodation
* the employer and the individual are required to have an “interactive dialogue” to discuss what accommodation, if any, would allow the individual to perform these essential functions
* the employer may elect which accommodation, if any, that it finds reasonable
* in certain very limited and exceptional situations, an employer may deny the request for an accommodation if it can prove that it would impose an “undue hardship”.
There is a very broad range of accommodations that may need to be considered and the designated ADA officer should become knowledgable about them. As an example, the New York Times recently had a story about the wide range of species that are now being used as “service animals.”
Expect 2009 to be one in which employers will be dealing with many more disability issues than in the past.
