ADA amended effective January 1, 2009

Happy New Year! As they ring in the New Year, employers must be mindful of and comply with amendments to the Americans with Disabilities Act ("ADA"). On September 25, 2008, the ADA Amendment Act ("ADAAA" or the "Amendment") was signed into law and became effective on January 1, 2009. Because the ADAAA broadens the definition of disability, the ADAAA instructs courts and employers to adopt a broad standard when determining whether an individual is considered disabled. The Amendment shifts the inquiry from whether the individual has a disability, to whether covered entities have complied with their obligations to reasonably accommodate disabled applicants and employees.

Employers should pay careful attention to the new rules for the definition of disability under the ADAAA and remember the following principles:

The ADAAA reverses two (2) seminal Supreme Court cases, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S. Ct. 681 (2002) and Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999), finding the Supreme Court's interpretation of the ADA and in particular the Court's interpretation of who is considered "disabled," too restrictive and not in keeping with the spirit of the ADA. The liberal interpretation of "disabled" in the Amendment will likely lead to a larger population of employees who will now be considered disabled under the Amendment and who will seek accommodations as well as a larger number of employees who will claim they are "regarded as" disabled in disparate treatment claims.

The ADAAA does contain some provisions considered favorable for employers. These provisions include the following principles:

The ADAAA requires the U.S. Equal Employment Opportunity Commission ("EEOC") to create new regulations, but does not set a new regulation deadline. Based on a deadlock vote of the EEOC on December 11, 2008, the ADAAA goes into effect on January 1, 2009 without any interpretive regulations to assist employers in navigating the new law. When the EEOC does make new regulations, it will publish them and allow public comment for sixty (60) days before the regulations may take effect.

Employers must begin training their supervisors and managers about these new rules. In addition, employers should train managers, supervisors and decision makers not to connect an impairment or perceived impairment with an employment decision. Frequently decision makers inform employees that hiring, promotion or termination decisions were based on an employee's impairment or perceived medical condition. At a minimum, these mis-statements create "regarded as" disability claims. For example, a supervisor who reassigns an employee "because he believes the employee has cancer" in an effort to assist an employee, creates liability for the employer even if the employee's actual condition does not qualify as a disability under the ADAAA. In some instances, it is helpful to refrain from sharing with managers and supervisors information regarding employee health conditions and impairments altogether. It is the intention of Congress to create an interactive process between employer and employee to discuss accommodation. Because the ADAAA enacts new broad standards regarding employees who will be considered "disabled," employers are wise to seek independent outside counsel in handling accommodations requests.

For more information regarding the rules under the ADAAA or responding to an employee's accommodation request, please contact Mary Elizabeth Davis (804) 697-2035.

Spotts Fain publications are provided as an educational service and are not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.