ADA Amendments Expand the Definition of Disability
As of January 1, 2009, employers will be responsible for accommodating any employee who is “disabled” under the expanded definition of the ADA Amendments Act of 2008 (the “Amendments Act”).¹ The Amendments Act significantly expands the circumstances in which an employee is considered “disabled” and will have the effect of substantially increasing the number of covered employees.
The Americans with Disabilities Act (“ADA”), originally enacted in 1990, was designed to protect an employee or job applicant with a “disability,” defined as “an impairment that substantially limits one or more major life activities, a record of such impairment, or being regarded as having such an impairment.” While the Amendments Act maintains the definition of “disability,” it expands the definition of “major life activities.” For example, among the categories of legally protected disabilities, the Amendments Act broadly includes impairments that affect “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.” These expansive categories may require an employer to accommodate, for example, an employee who:
- is undergoing fertility treatment;
- has Crone’s disease;
- has high blood pressure;
- or has asthma.
The accommodation may include providing paid time off from work in order to undergo fertility treatments for an infertile employee, or creating a work space free of asthma-inducing furniture for an asthmatic employee.
Significantly, the Amendments Act directly abrogates Supreme Court precedent and EEOC guidelines concerning the definition of disability under the ADA and instructs the courts and federal agencies to broadly interpret the term “disability” going forward.
The Amendments Act applies to any individual employed as of January 1, 2009, regardless of the employee’s date of hire. Therefore, although an employer may not have been obligated to accommodate an employee with high blood pressure prior to January 1, 2009, as of that date, the same employee will be entitled to accommodation. With regard to applicants, the Amendments Act applies to any decision made by the employer following January 1, 2009, regardless of when the individual actually applied for a position with the company.
Employers are advised to take the time to familiarize themselves with the Amendments Act before it takes effect on January 1, 2009, and to consult with legal counsel as to any specific questions regarding an individual employee.
Meira Ferziger is the head of the labor and employment practice at Schwell Wimpfheimer & Associates and has significant experience in drafting policies, agreements, employee handbooks and guidelines in compliance with federal and state law. Meira functions as an integral part of the day to day operation of corporate clients by counseling them through their employment-related practices and decisions, and also advises clients as to employment issues that arise from corporate transactions, such as restructurings or acquisitions. She can be reached at meira@swalegal.com or at 646 328 0794.
This SWA publication is intended for informational purposes and should not be regarded as legal advice. For more information about the issues included in this publication, please contact Meira Ferziger. The invitation to contact is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.
¹ The full text of the Amendments Act is available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s3406enr.txt.pdf. The EEOC’s summary of the law is available at http://www.eeoc.gov/ada/amendments_notice.html.
Filed Under: Labor & Employment , Publications
