By: Kristin Kraemer
Kevin Barry and Marcy Karin
January 1, 2009 Amendments were passed to the ADA that broadened the definition of “disability”
Disability under ADA Amendments Act:
The term “disability” defined:
a) a physical impairment that substantially limits one or more major life activities of such individual
b) a record of such impairment or
c) being regarded as having such an impairment.
The regarded as prong broadens the definition significantly.
The first and second prongs were also broadened. Major life activities include bodily functions.
The presenters did a project in which they looked at pleadings from 2012. 58% did not reference the ADAAA. 19% of complaints failed to allege an impairment. Regarded as prong not mentioned in 60% of complaints. No complaints alleged that major life activities include major bodily functions.
Many complaints do not look at the actual text of the ADAAA. Non-accommodation claims should include the regarded as prong. The broadened definitions of the ADAAA should be used in complaints.
Before the amendment people with out disabilities were not being covered at all. There were many hurdles to determine whether a plaintiff would even be covered when they had a disability.
Tips for clients: Clients with a disability should tell the employer before they perform poorly so they may be accommodated. If you ask for accommodation then you are protected from retaliation.
1) Don’t be afraid to tell the employer about the disability.
2) Don’t be afraid to ask for accommodations, but have accommodations in mind. Give multiple options to the employer.
3) Send a follow up email or something in writing about the condition so employer can’t say they never knew about it. Send an email thanking them for talking about the disability and the ideas for accommodation.
One problem on the management side is that employers take adverse employment actions without realizing they had an obligation to enter into an interactive process to reasonably accommodate someone with a disability.
The biggest problems for employers are the regarded as standard and the interactive process. Employers should document the interactive process.
He recommends training supervisors and managers as well as HR people about how to handle requests for reasonable accommodation. Employers should understand their obligations, and realize that set policies of the company may not be set for everyone when there is someone asking for an accommodation.
What it means to be qualified under the ADA.
There are two hurdles to coverage: 1) disability 2) qualification.
Qualification: the individual must be able to perform essential functions of the job with or without the reasonable accommodation and to have the background the employer requires you to have.
Is there an obligation to help the job applicant or employee meet the standard asked by the employer?