When it became effective on January 1, 2009, the ADA Amendments Act of 2008 (ADAAA) substantially changed the core of the Americans with Disabilities Act (ADA) by expanding the ADA’s definition of disability. This will likely result in a sharp increase in the number of individuals found to have a covered disability.
The ADAAA also:
- Expanded the conditions that constitute a major life activity
- Reinstated the broad scope of what substantially limits a major life activity;
- Established that an impairment that is episodic or in remission is a disability if the impairment would substantially limit a major life activity when active;
- Redefined who is regarded as having a disability; and
- Dictated that disability determinations be made without regard to the benefits of mitigating measures including hearing aids, medication, medical supplies, auxiliary aids and services.
The ADAAA excludes ordinary eyeglasses and contact lenses from the list of mitigating measures. Under the ADAAA, the employers may no longer take into account an individual’s use of mitigating measures when considering whether an impairment substantially limits a major life activity.
As a result of the ADAAA, the threshold issue of whether an individual has an ADA disability will no longer be the focus of most litigation. Instead, it is likely that the focus will be on the individual’s ability to perform the essential functions of a job, and whether the employer has met its obligations to engage in the interactive process and provide a reasonable accommodation. In addition, there will probably be an increase in “regarded as” litigation, with employees claiming an adverse employment action was based on an employer-perceived impairment.
The ADA prohibits disability discrimination in the full range of employment and personnel practices, such as recruitment, hiring, rates of pay, promotions, and selection for training.
To be protected by the ADA, an individual must have a disability, and the individual must be qualified to perform the essential functions of the job in question, with or without a reasonable accommodation by the employer. In addition to protecting individuals with disabilities, the ADA prohibits an employer from discriminating against an applicant or employee who has a known association with an individual with a disability.
The ADA requires that employers provide reasonable accommodation for the known disability of a qualified individual, unless to do so would impose an undue hardship on the operation of the employer’s business (42 USC 12102et seq.). An employer is not required to provide reasonable accommodation to an individual who meets the definition of “disability” under the law only because he or she is “regarded as” having a disability (42 USC 12201(h)).
“Reasonable accommodation” is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.