New Year, New Disability Lawsuits

Happy New Year!

Or is it?

Because today, January 1, millions of American employees will become disabled — including some of yours. No, we’re not predicting a rash of workplace injuries or a horrible epidemic. Instead, these workers got their newfound disabilities at the stroke of a pen. On September 25, 2008, President Bush signed the ADA Amendments Act of 2008 (ADAAA), significantly changing the Americans with Disabilities Act. The changes make it easier for individuals to show that they are disabled. The amendments also expand their protection under the law. Congress made the changes in response to court decisions that had narrowed the scope of protection over the 18 years since the ADA was passed.

Congress found that these court cases focused more on analyzing whether an individual’s impairment was considered a disability and less on whether employers had met their obligations under the ADA. The new amendments reverse that focus.

Before the amendments, disability lawsuits would sometimes turn on whether the employee was actually disabled — that is, did he or she have a “major life activity” that was “substantially impaired”? But the original ADA never explained what a “major life activity” was. The amendments change that, giving examples such as learning, reading, concentrating, thinking, and working.

The new law also relaxes the “substantially impaired” requirement. Congress determined that the original law created too high a bar to gaining ADA protections. Under the new law, the question of whether an individual is disabled requires little analysis.

Other court decisions had rejected disability status if the employee was able to use corrective measures — such as prosthetics, medications, and hearing aids — to overcome the impairment. But the amendments do away with this analysis; an employee is disabled even if she can hear with a hearing aid. Similarly, if an impairment is episodic or in remission, it still counts as a disability.

Because the ADAAA eases the definition of disability, employers should expect to see an increase in disability-discrimination claims. And those claims will now be harder to defend against, as employees who previously were not considered disabled now will be.

What you can do:

• Read the text of the ADA Amendments Act of 2008 here (PDF)
• Train supervisors to properly handle requests for accommodations
• Have procedures for handling employees’ health issues 
• Talk to your employment counsel as soon as an issue arises with a potentially disabled employee