Amended ADA will change how employers evaluate disabilities.

• Author: Finlon, Kristen E.
• Position: LAW JOURNAL 2010

Many lawsuits under the Americans with Disabilities Act involve employers who meant well and believed that they were acting in the best interests of a disabled employee or applicant. But even a well-meaning employer can wind up depriving a disabled individual of opportunities, failing to provide reasonable accommodations for his or her disability, or otherwise discriminating against him or her.

The ADA requires covered employers to reasonably accommodate qualified disabled applicants or employees unless such accommodations would result in undue hardship to the employer. Equal Employment Opportunity Commission regulations emphasize that reasonable accommodation may require an "informal, interactive process" to identify the individual's precise limitations and the potential reasonable accommodations that could overcome those limitations.

Under the changes imposed by the ADA Amendments Act of 2008, it is more critical than ever that employers engage in a meaningful interactive process with disabled employees to ensure that options for reasonable accommodations are thoroughly explored and implemented.

Amendments to the ADA

With all the other headlines in September 2008, it hardly would be surprising if no one noticed that President George W. Bush signed into law an act amending the ADA. Because the ADA Amendments Act went into effect in January 2009 and does not apply retroactively, courts in this circuit have had little opportunity to consider the effects of the changes. However, the ADA Amendments Act may have significant implications for employers covered by the ADA's employment provisions.

The primary focus of the ADA Amendments Act is how disability is understood. Both before and after the Act, disability has meant a physical or mental impairment that substantially limits one or more major life activities of an individual; a record of having such an impairment; or being regarded as having such an impairment. In drafting the act, Congress was responding to two disturbing trends in court decisions and the EEOC regulations concerning what it meant to be substantially limited in a major life activity. Under these trends, an individual who was impaired in a major life activity could nevertheless be found not disabled under the ADA if the impairment could be ameliorated through medications, devices or other means, or if the impairment affected only activities relevant to the individual's job and not to his or her "daily life."

The ADA Amendments...