Americans with Disabilities Act Amendments Act of 2008 and Reasonable Accommodations in the Workplace ---------- ---------- GUAM LEGAL SERVICES CORPORATION – DISABILITY LAW CENTER “ The Protection and Advocacy System for Guam.” October 2011
Signed into law by President George W. Bush on September 25, 2008
Went into effect on January 1, 2009
EEOC issued final regulations effective as of May 24, 2011.
Also applies to discrimination under Rehabilitation Act (employment by federal agencies and those that receive federal funds)
Purpose of the ADA Amendments Act of 2008 (ADAAA)
Congress originally intended the ADA to “provide broad coverage.”
Whether an individual’s impairment is a disability under the ADA “should not demand extensive analysis.”
The Supreme Court’s ruling that the definition of disability under the ADA is a “demanding standard” and that an impairment must “significantly restrict” an individual from doing activities of “central importance to most people’s daily lives” is rejected.
Definition of “Disability” under the ADA and ADAAA
A person has:
A physical or mental impairment that substantially limits one or more major life activities of such individual;
The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures (such as medication, assistive technology, hearing aids—not eyeglasses or contact lenses).
If the mitigating measure itself causes limitations (e.g. medication side effects), those effects will be considered.
An impairment that is episodic or in remission is considered when it is active.
The impairment need only substantially limit one major life activity.
Some impairments should easily be concluded to substantially limit a major life activity. E.g. deafness, blindness, intellectual disability, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, muscular dystrophy, major depressive disorder, schizophrenia.
In determining whether an impairment substantially limits a major life activity, may look at the condition, manner, or duration, such as the difficulty, effort, or time required to perform the activity, or the pain experienced.
Focus is on how the major life activity is substantially limited, not “what outcomes an individual can achieve.” e.g. Somebody with a learning disability who has achieved high academic success may still be covered because of the additional time she spent studying.
A person who meets the “being regarded as” prong of the definition of disability does not need to show she was regarded as “substantially limited in a major life activity” to bring a claim of unlawful discrimination based on disability.
Once reasonable accommodation is made an issue, the employer should “initiate an informal interactive process with the individual with a disability.”
Both the employer and employee should participate in good faith
An employer’s failure to engage in the interactive process is not in itself against the law, but it is relevant when it results in a failure to identify a reasonable accommodation which exists.
The Interactive Process: Employee’s Responsibilities
The employee should:
Make the request for a reasonable accommodation.
Should be in writing and include:
The nature of the disability
Reason for the request
If necessary, include a doctor’s note
The Interactive Process: Employer’s Responsibilities
After the request, the employer should “initiate the interactive process” including the employee, her supervisor, and any other relevant people (e.g. doctor, human resources, AT specialist). See 29 C.F.R § 1630.2(o)(3).
Employer is allowed to request more in-depth information if needed relating to the nature, severity, and duration of the impairment, the activities that are limited, how the impairment relates to the accommodation, and how the reasonable accommodation will help the person do the job.