Employers may be caught off guard by new ADA law

Employers are not prepared for the new ADA Amendments Act that went into effect on Jan.1, some management attorneys warn.
Employers, who supported the bill, may be caught off guard by how broad it actually is.
“These amendments are revolutionary, and I don’t think employers have figured that out yet. A lot of things managers and supervisors think are trivial are now going to be considered a disability, such as sleep apnea,” said Michael Maslanka, managing partner at Ford Harrison in Dallas.
Plaintiffs’ attorneys are now more likely to take cases that they rejected under the old law.
“In the first few years, it will lead to more litigation as plaintiffs show a greater willingness to pursue these cases,” said Peter Susser, a partner at Littler Mendelson in Washington, D.C.
However, the focus of the cases will shift away from whether an employee is disabled toward whether the employer offered a reasonable accommodation, lawyers predict.
“The issue is going to be: Did the employer discharge its duties?” said Maslanka.
But this question is more fact-intensive and depends on the individual, the functions of the job and what will cause an undue hardship for the employer, so more cases are expected to go to trial.
Meanwhile, employment attorneys are waiting to see how the EEOC interprets a few issues that remain fuzzy under the new law.
The commission was originally set to release guidelines by the end of 2008 before the new law took effect, but postponed them. Under the new administration, Barack Obama will have one vacant seat on the commission to fill.
The new commission is likely to provide a “more expansive reading than under the Bush administration, and the business community will be paying close attention to the terminology and scope of the regs,” said Susser.

Broader employee protections

Under the ADA, a disability is defined as a physical or mental impairment that “substantially limits” one or more major life activities and requires employers to make a reasonable accommodation.
But courts have narrowly construed the definition of disability under the old law.
The new law overturns a trilogy of U.S. Supreme Court cases decided in 1999 that said medication or other corrective measures should be considered when determining whether an individual has a “substantial impairment.” (Sutton v. United Air Lines, 527 U.S. 471, Murphy v. UPS, 527 U.S. 516, and Albertson’s, Inc v. Kirkingburg, 527 U.S. 555). The new law also overturns Toyota v. Williams, 534 U.S. 184 (2002), in which the court construed the term “substantially limits” in such a way that impairments that interfere in only a minor way with performing tasks were precluded from coverage.
“The meaning of ‘substantially limited’ has been hollowed out, so you can take all the cases before Jan. 1 and toss them into the nearest trash can,” said Maslanka.

What the EEOC can clarify

One of the biggest issues the EEOC regs can clarify is what “substantial limitation” means.
“The statute tells us what it’s not, but it doesn’t say what it is. We know it’s not ‘severely restricted,’ and we know it’s not ‘significantly restricted,’” said Brian East, an attorney with Advocacy, Inc. in Austin, Texas, a non-profit that represents people with disabilities.
The House version of the law said that substantially limited means “materially restricted,” but that was removed from the Senate version that ultimately passed.
“Is that language going to reappear? I really think the EEOC could play a pretty key role in [defining] what ‘substantially limited’ means in this new law,” said East.
The law already details certain new items, such as bending, that are now considered a major life activity.
But some lawyers are looking to the EEOC to enumerate a list of major life activities that are not named in the statute and that courts are split over, such as driving and running.
“Some circuits have held that driving is not a major life activity, but the new law says it is to be interpreted broadly, so does that mean that driving is a major life activity? And will the EEOC give us a list of other things that are major life activities?” said East.
Another issue the EEOC could clarify, East said, is whether the major life activity of working requires proof that the person is significantly restricted in a broad range or class of jobs, as required under previous EEOC guidance.
But management attorneys seem to have largely ceded the disability issues and are instead looking for guidance on what constitutes a reasonable accommodation.
“The best employers can hope for is more guidance on how to reach an accommodation. That’s where the action will be,” said Maslanka.
He is looking for the EEOC to spell out that the reasonable accommodation process is a “two-way street” that also requires the active participation of the employee.