What to make of the ADA Amendments?
On the first of the year the ADA Amendments Act of 2008 ("ADAAA", certain to be succeeded in the legal vernacular by something friendlier to the tongue) is effective. With this law the Congress went out of its way to reverse Sutton, Toyota, and the other that had rationally put some restraints on the legal definitions of "disability," "major life activities," and "impairment," so the first observation we make is that the threshold definitional defense is out the window.
But in Illinois, we have had a state law ADA for years, and what the ADAAA has accomplished with definitions, has been around since the late 1980s.. A "handicap" in Illinois is much broader than the (current) "disability" under the ADA. The practical consequence is that applicants, employees, and ex-employees can get a jury in federal court using a broad definition of "disability" that approximately tracks the "mental or physical condition = handicap" equation under the .
Second, accommodation is of more significance as an and practice because of the amendment's strengthening of the law. Do you maintain an accommodation log? Are managers regularly trained and reminded about the legal obligation to consider and implement accommodation? What do your job descriptions say about mental and physical minimum requirements?
Third, access is getting a boost as a workplace feature. This applies not only to Title III public accommodations but to all covered employers under Title I. Although access under Title I is not expanded explicitly in the ADAAA, it emerges as an accommodation concept because of the erosion of definitional defenses. Consider employees who have a disability and use mitigating measures such as hearing aids or insulin. Under the ADAAA (except for eyeglasses) the Sutton carve-out is no longer an HR consideration. You have to re-think access for disabled employees who turn off their hearing aids or neglect to take insulin.
A fourth point to make is that it will be easier for an employee who has exhausted FMLA leave to transition into a kind of ADA leave because of the loosened definitions.
Are you interested in a complimentary one-hour on-site workshop on this important topic? Call us to arrange a morning or afternoon awareness meeting with managers.