Editor’s Note: Kyle R. Still is a member of the Labor and Employment Practice Group of Ward and Smith, P.A.

On September 25, 2008, President George W. Bush signed the ADA Amendments Act of 2008 (“ADAAA”) into law. Congress’s stated intent for passing the ADAAA was to significantly revise the Americans with Disabilities Act of 1990 (“ADA”) to allow more employees to be protected under the law. In order to afford this “broad scope of protection” for employees, the ADAAA changed the definition of “disability” so that more employees will qualify for protection. Although the ADAAA officially went into effect on January 1, 2009, the regulations of the Equal Employment Opportunity Commission (“EEOC”) interpreting the ADAAA did not become effective until May 24, 2011. You should act promptly to ensure that your employment policies and procedures comply with these new mandates.

Disability under the ADA

The ADA provides protection from employment discrimination to qualified individuals with a disability, just as Title VII of the Civil Rights Act of 1964 protects employees from employment discrimination on the basis of race, color, sex, national origin, and religion. One significant aspect of the ADA, however, is unique when compared to Title VII. When an employer determines that one of its employees is a qualified individual with a disability, that employer has the additional obligation to reasonably accommodate the employee so that the employee can perform his or her job. To determine what accommodation is required for a given employee, the employer is required to go through an “interactive process” with the employee in which each side gives feedback about what will allow the employee to perform his or her duties despite the disability.

The accommodation process, however, can be time consuming and difficult for employers. In the opinion of some members of Congress, employers were avoiding their accommodation obligations by narrowly interpreting the ADA with respect to which employees truly were qualified individuals with disabilities protected under the ADA.

Employers could do this in a number of ways. One of the most common methods used by employers was to argue that the employee’s impairment did not meet the technical definition of “disability” under the ADA. Although the ADA contains three definitions for “disability,” the primary one applicable to employees with active disabilities is that the employee has a physical or mental impairment that “substantially limit[s] one or more major life activities” such as sleeping, lifting, standing, sitting, and other regular tasks of life. Few would argue, however, that this definition clearly describes who is disabled and who is not. Indeed, when interpreting this very language, even the United States Supreme Court construed the term very narrowly (at least in Congress’s eyes), thus limiting the number of employees who could receive ADA protection.

The Goal of the ADAAA

When it passed the ADAAA, Congress noted that it intended the ADA to “‘provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities’ and provide broad coverage.” Furthermore, Congress specifically noted that the United States Supreme Court had interpreted the scope of the ADA too narrowly, causing courts to limit the number of employees who could claim its protections.

To correct these previous narrow misinterpretations, Congress stated that it intended for the ADAAA “to carry out the ADA’s objectives of providing ‘a clear and comprehensive national mandate for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable standards addressing discrimination’ by reinstating a broad scope of protection to be available under the ADA.” Thus, Congress was making clear its intent that the ADA should cover a greater number of employees, putting the burden on employers to focus on their accommodation responsibilities rather than the employee’s disability status.

Interestingly, however, the ADAAA largely kept the same definitions of disability as the ADA, despite its intent to expand coverage to include more employees. In the preamble to the ADAAA, however, Congress explicitly stated that it expected the EEOC to adopt regulations broadly interpreting the coverage of the ADA to include more employees. Thus, it was important for employers to see the scope of regulations issued by the EEOC to determine more precisely the scope of their obligations toward disabled employees. Those regulations became effective on May 24, 2011 (“2011 Regulations”).

The ADAAA Regulations

Although the 2011 Regulations discuss a number of issues, this article focuses on the expansion of the pool of employees who will qualify as disabled.

With regard to that issue, the EEOC stated that its 2011 Regulations are “designed to simplify the determination of who has a ‘disability’ and make it easier for people to establish that they are protected by” the ADA. This is clear from rules of construction included in the 2011 Regulations which state that the test for whether an employee has a disability is not meant to be a “demanding standard.” Instead, employers attempting to determine if they must reasonably accommodate an employee should “constru[e] [the concept of disability] broadly in favor of expansive coverage.” Although the disability still must substantially affect a major life activity, the EEOC stated that “whether an impairment ‘substantially limits’ a major life activity should not demand extensive analysis.” Instead, the “primary focus should be whether [employers] have complied with their obligations and whether discrimination has occurred.”

The 2011 Regulations make it clear that the EEOC does not intend for employers to engage in substantial efforts to determine if an employee’s impairment qualifies as a disability, because a minimal showing will suffice. Instead, the EEOC is requiring employers to focus on their other obligations under the ADA, primarily their obligation to make reasonable accommodations for employees with disabilities. In the future, when an employer receives a charge of discrimination, the EEOC will not inquire extensively about whether the employee is truly disabled, but instead will focus on whether the efforts taken by the employer were sufficient to meet the employer’s accommodation obligations.

What You Should Do to Comply

As a result, you should ensure that your employment policies are up to date with the ADAAA and the 2011 Regulations. To the extent that your employment policies reflect the narrow construction of disability previously used, you should replace such language with provisions showing your efforts to provide protection to the broad class of individuals protected by the ADAAA.

Most importantly, you should ensure that you are prepared to respond properly to an employee’s request for accommodation. This will require your supervisors to be trained so that they can adequately identify when an employee actually is requesting accommodation under the ADA. Furthermore, you must adopt an appropriate reporting mechanism so that your supervisors can relay accommodation requests to managers trained in responding to such requests. Finally, you must train specific management employees (usually in your Human Resources Department) in the appropriate method for engaging in the detail-oriented interactive accommodation process mandated by the ADA, the ADAAA, and the 2011 Regulations.

Conclusion

In light of the 2011 Regulations, it is more difficult to rely solely on challenging whether an employee claiming a disability is disabled. When an employee makes you aware of an impairment, you should assume in most situations that protected disability exists and focus on what accommodations you should make to facilitate the employee’s performance of his or her job duties.

© 2011, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Kyle R. Still practices in the Labor and Employment Practice Group where he represents clients in a wide range of employment litigation, regulatory, and legislative matters. Comments or questions may be sent to ks@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.