The Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which took effect on Jan. 1, 2009, brought significant changes to the ADA. Companies in all industries are still trying to understand the impact of the act on the definition of a disability and the resulting issues.
To get some guidance on the act for corporate counsel, we turned to Merrick T. Rossein, professor at City University of New York School of Law (CUNY) and author of Employment Discrimination Law and Litigation , published by West.
Rossein says the ADAAA is one of the key trends in employment law today, specifically, the heightened obligations under the act. "There are increased disability discrimination claims generated by the passage of the ADAAA and this trend is likely to continue based on the Equal Employment Opportunity Commission (EEOC) issuance of a Notice of Proposed Rulemaking (NPRM), conforming its ADA regulations to the Amendments Act of 2008," Rossein said.
The NPRM was published in the Federal Register on Sept. 23, 2009. The Commission has also issued a question and answer guide on the NPRM. The emphasis of ADA litigation is shifting away from whether plaintiffs are disabled toward questions of whether employers have complied with the law.
"The most challenging issues include the scope and meaning of 'reasonable accommodation,' 'undue hardship' and 'essential job functions' to establish compliance with ADA obligations," said Rossein. "Case law and other guidelines that interpreted the definition of disability under the prior law will be largely useless in determining who is covered under the new law."
As a result, Rossein says employers will be hard-pressed to get charges dismissed or summary judgments granted on the grounds that an individual is not disabled. Given the ADAAA's congressional findings "that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis," whether an individual's impairment rises to the level of a "disability" under the ADA will certainly be an easier standard to meet, Rossein said, and, as a corollary, likely will not be a determinative factor in resolving summary judgment motions in an employer's favor.
"Many employers will need to change their approach to medical conditions in the workplace, recognizing that common illnesses and impairments not previously considered to be disabling will now be ADA-covered disabilities," said Rossein.
Rossein says the Second Circuit also has held that an employer has a duty reasonably to accommodate an employee's disability if the disability is obvious, which is to say, if the employer knew or reasonably should have known that the employee was disabled. "The Second Circuit in Brady v. Wal-Mart Stores, Inc . first noted that generally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed," said Rossein.
So how can corporate counsel best manage the implications of the ADAAA? Rossein says employers will need to change their approach to medical conditions in the workplace, recognizing that common illnesses and impairments not previously considered to be disabling will now be ADA-covered disabilities.
"This vastly broader universe of covered individuals will, in turn, shift much of the focus to reasonable accommodation - more precisely, whether an individual with a physical or mental condition is otherwise qualified to perform essential job functions, with or without reasonable accommodation," Rossein said. "Employers covered by the Second Circuit in Brady v. Wal-Mart Stores, Inc . should train managers to be proactive when they observe or learn of an obvious disability and should coordinate immediately with human resources and respond."
Merrick T. Rossein's publications are available on the West Web site at www.west.thomson.com.
For additional insight on employment law and the ADA, the following Westlaw databases and publications also are available:
Employment Law Deskbook for Human Resource Professionals(EMPDESK)
Disability Law Deskbook: The Americans with Disabilities Act in the Workplace (PLIREF-DISLAW)
Leave and Disability Coordination Handbook Newsletter (LDCHBK-NWL)
ADA Compliance Guide Newsletter (ADAGUIDE-NWL)
Corporate Counsel's Guide to Americans with Disabilities Act (CCGADA)
Disability Law Compliance Manual (DLCM)
Americans with Disabilities Act Technical Assistance Manuals (ADA-TAM)
Americans with Disabilities: Practice and Compliance Manual (AMDISPCM)
Disability Law Compliance Report (DLCR)