New ADAAA part 2, what has changed?

What has changed

Editor – This is the 2nd in a 5 part series from The New York Law Journal discussing legal pitfalls for US employers under the new Americans with Disabilities Amendment Act of 2008 (ADAAA). Canada is one of the few G7 countries without comprehensive employment legislation that protects persons with disabilities in the workforce and in society. Progress on disabilities and human rights has moved to the back burner as Canada slips behind the rest of the developed world in its treatment of the largest minority in Canada, the disabled.

Previous Article New ADAAA part 1 – protection for employees

By Barbara E. Hoey, New York Law Journal, March 23, 2009

The New ADAAA

The ADA was passed with much fanfare in 1991, heralded as the statute that would finally end decades of workplace discrimination for those with disabilities. It did not work out that way. The federal courts were very strict in determining which plaintiffs met the ADA’s definition of a “disability,” resulting in the dismissal of many cases. That ended with the passage of the ADAAA, which Congress noted was specifically intended to overrule several Supreme Court decisions that had offered an unduly restrictive definition of a “disability.” Congress instructed that the ADAAA should be interpreted to favor “broad coverage of individuals under the ADA,” and that the courts must focus not on whether an employee is “disabled,” but on whether the “employer is complying with its obligations under the law.”

What Has Changed?

The ADAAA did not change the basic definition of a disability under the ADA, which is a “physical or mental impairment,” a “record of an impairment” or being “regarded as” having an impairment, which “substantially limits one or more of the major life activities” of the individual. 42 USC 12102 (1) (a).

The ADAAA did five things that are significant.

1. It provides that the definition of the ADA “disability” must both be more “flexible” and “broadly construed.”

2. It expands the list of “major life activities.”

3. It provides that courts can no longer consider whether “mitigating measures,” such as medication or assistive technology, reduce the impact of impairment on an individual.

4. It states that diseases that are “episodic” or in remission may still be “disabilities.”

5. It provides that an employee who claims she is “regarded as” disabled can now make an ADA claim, even if the “perceived” disability does not impact a major life activity.

The New “Flexible” Definition of a Disability.

In a 2002 decision, Toyota Motor Manufacturing, Kentucky Inc. v. Williams, 534 U.S. 184 (2002), the U.S. Supreme Court had held that “substantially limits” means “significantly restricted” and that an illness that caused only “minor” or “moderate” limitations on an employee’s major life activities would not qualify as an ADA-covered “disability.” The new ADAAA specifically overruled Toyota, stating that the “significantly restricted” test set “too high a standard” for a qualifying disability. Interestingly, Congress went on to note that an older Supreme Court decision, School Board of Nassau County v. Arline, offered a definition of a disability that was more in line with its intent.2

It is now up to the Equal Employment Opportunity Commission (EEOC) to issue regulations that will define “substantially limits.” If the EEOC follows Arline, this could be bad news for employers. The plaintiff in Arline had only been hospitalized once for treatment of tuberculosis. The Court held that this one hospitalization was enough to establish that her impairment was a “disability.” If the EEOC states that one hospital stay is enough to make an employee “disabled,” this will surely cause a dramatic rise in ADA-protected plaintiffs.

There Are More “Major Life Activities.” The list of “major life activities” prior to the enactment of the ADAAA was in the EEOC regulations. Now there are two even longer lists, both in the ADAAA.

• First, the ADAAA offers what is described as a “non-exhaustive” list of “major life activities” which include reading, learning, working, “communicating,” “concentrating,” “thinking,” “caring for oneself,” walking, eating and sleeping.

• As a second category of “major life activities,” the ADAAA states that any impairment that interferes with the “major bodily systems or organs” (i.e., neurological, reproductive, digestive, respiratory, circulatory) is a disability covered by the ADA.

Using these new lists, one can envision employees with learning disabilities, mental illnesses, digestive disorders like colitis, or circulatory disorders like high blood pressure coming forward to claim the ADA’s protection, even if the disorder does not significantly impact their daily lives. Again, the universe of potentially disabled people continues to expand.

Barbara E. Hoey is a partner and co-chair of the labor and employment practice group at Kelley Drye & Warren. She can be reached at bhoey@kelleydrye.com.

Endnotes:

1. In fact, plaintiff had worked for the employer’s predecessor, so was qualified for FMLA leave under Department of Labor regulations, which applied to an employer’s “successor in interest,” 29 USC §2611(2)(A)(ii). Brown v. Nutrition Mgmt Services, 2009 U.S. Dis. LEXIS 4199 (E.D. Pa. 2009).

2. School Board of Nassau County v. Arline, 480 U.S. 273 (1987).