New ADAAA part 3 – who is disabled?

What has changed

Editor – This is the 3rd in a 5 part series from The New York Law Journal which 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 disability employment protection 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 2, what has changed?

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

The Courts May Not Consider “Mitigating Measures.” In what was a victory for employers, the Supreme Court, in Sutton v. United Airlines, 527 U.S. 184 (1999), held that in evaluating whether an employee had a disability, the courts should consider any “mitigating measures,” like medications, prosthetics, or hearing aids, which were available to help that person. Sutton is no longer the law. The ADAAA provides that you cannot consider any “mitigating measures” (except for eyeglasses and contact lenses) in determining whether an employee has an ADA-protected “disability.”

Now, an employee who takes medication for a chronic condition, or uses a hearing aid, a pacemaker or some other device, will qualify as “disabled” – regardless of whether they exhibit symptoms that interfere with their ability to work. Essentially, you are “disabled” even if modern medicine and technology allow you to function well, despite your condition.

The ADAAA Covers Impairments That Are Episodic or in Remission. Under the “old” construction of the ADA, employees who had diseases that were in remission were not protected by the ADA, if they were not currently “substantially limited” in a major life activity. Now, the ADAAA states that employees suffering from “episodic” impairments or impairments in remission are protected under the ADA, if the condition would substantially limit a major life activity when active.

Hence, the employee whose heart disease or diabetes or high blood pressure is treated and controlled, or who may not “show” any symptoms, is now “disabled” under the ADA. Does this mean that the employee with cancer in remission or heart disease that is treated is forever “disabled”? You could argue that no employee will ever be “cured” under the new ADAAA.

Expanded Protection for Employees Who Are “Regarded As” Disabled. The ADA had always protected those who claimed they were “regarded” or “perceived” as disabled, even if they were not presently suffering from any disability. However, these plaintiffs had to prove that the alleged disability would have been “substantially limiting,” in order for them to be protected. Now, the ADAAA provides that employees may claim that they were “regarded as” disabled by their employer even if the impairment would not substantially limit a major life activity.

In a small victory for employers, the new law states that a plaintiff who claims a “transitory” or “minor” impairment may not fit into this “regarded as” group, and employers are not required to provide reasonable accommodations to those employees who are covered only under the “regarded as” prong of the statute.