Professional Service Agreement

Amended ADA Has Important Implications for Employers

October 22, 2008

On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Employers with 15 or more employees are required to comply with this federal law.

The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of the EEOC's ADA regulations. The Act expands the protections of the original ADA to include more individuals with less severe impairments, and many experts believe this will result in an increased number of claims of discrimination filed under the ADA. The Act is effective as of January 1, 2009.

The Act retains the ADA's basic definition of a disability as:

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

However, the ADAAA has expanded the definition of "major life activities" to include:

? Caring for oneself
? Performing manual tasks
? Seeing
? Hearing
? Eating
? Sleeping
? Walking
? Standing
? Lifting ? Bending
? Speaking
? Breathing
? Learning
? Reading
? Concentrating
? Thinking
? Communicating
? Working

The ADAAA also adds a new major life activity category ? "major bodily functions", which includes, but is not limited to:

? Functions of the immune system
? Cell growth
? Digestive, bladder, and bowel functions
? Neurological and brain functions
? Respiratory and circulatory functions
? Endocrine functions
? Reproductive functions

Other significant elements of the ADAAA include the following:

? The determination of whether an impairment substantially limits a major life activity must be made without regard to the use of mitigating measures such as medication, medical equipment, prosthetics, hearing aids, mobility devices, oxygen equipment, etc. Simply put, if an employee's condition would qualify without such aids, consider the person to have a protected disability. There is one exception, however, for ordinary eyeglasses and contact lenses.

? An impairment that is "episodic or in remission" is a disability even when inactive "if it would substantially limit a major life activity when active." Examples may include cancer, epilepsy, and post-traumatic stress disorder.

? An individual subjected to an action prohibited by the ADA (for example, failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is minor and "transitory" (actual or expected duration of the impairment is 6 months or less).

? Employees without disabilities cannot sue for "reverse discrimination" under ADA.

Broad Coverage

The ADAAA states that "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 under the terms of the Act." It is clear that the changes in this Act will benefit employees by making it more likely that they will qualify for reasonable accommodations and the ADA's protections.

Furthermore, the ADAAA states that the intent of these changes is that employers stop engaging in "extensive analysis" to determine what constitutes a disability under the law, and focus instead on complying with their obligation not to discriminate and to provide reasonable accommodations to individuals who are otherwise qualified to do a job.

What To Do:

In light of the changes to the Americans with Disabilities Act, SESCO recommends that you take the following action:

? Review job descriptions to ensure that elements of the job listed as essential functions are truly job-related and consistent with business necessity.

? Update policies and procedures to reflect the changes made the by the ADAAA.

? Ensure there is a formalized process in place for addressing requests for reasonable accommodations.

? Educate supervisors and managers about the ADAAA changes.

? Advise supervisors and managers to consult with Human Resources (or SESCO) whenever an employee requests an accommodation. Stress that they don't immediately refuse the request or retaliate in any way against the individual for making the request.

? Reconsider past accommodation requests from current employees who were denied accommodation because it was determined that the employee's impairment did not satisfy the ADA's definition of a disability.

? When in a position to take adverse action against an employee with a medical condition, be sure to have well drafted documentation of the legitimate, non-discriminatory reason for the action.

SESCO encourages all employers who must comply with the ADAAA train all managers and supervisors on an annual basis. SESCO offers the following on-site in-service. Also inquire about our telephone or web conferencing capabilities.

? Americans with Disabilities Act Amendment Act (ADAAA)
Scope — What is Covered?
? Employer Coverage
? Who is Covered or Protected by the ADAAA?
? Defining a Qualified Disability
? What is not Covered by ADAAA?
? What the ADAAA Requires of Employers
? Employer Actions Which May Constitute Discrimination
? ADAAA Compliance — Key Points to Remember
? How ADAAA Affects the Hiring Process
? Process of Determining The Appropriate Reasonable Accommodation

If you have questions about this change, please contact Phil Richards, Director of Client Services, at or call 423-764-4127.