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Strong ADA provisions go into effect this year

The landmark Americans for Disabilities Act (ADA) passed 18 years ago was intended to prevent employment discrimination against disabled people. But court rulings interpreted the law so narrowly that it ended up being difficult for disabled people to win lawsuits.

Starting Jan. 1, 2009, new amendments to the ADA go into effect that are expected to strengthen protections for the disabled.

“It has tightened up the law,” said Bethany Brantley Johnson, a shareholder with Ogletree, Deakins, Nash, Smoak, and Stewart, P.C., Ridgeland, which is one of the three largest labor and employment law firms in the country. “The intent of Congress was to put teeth into the act so it worked as was intended. But courts over the years have muddied up the waters with it.”

Johnson said the amendment tells courts to broadly construe the definition of disability in favor of coverage for individuals originally intended by Congress to be protected.

In 2000, in the case of Toyota Manufacturing vs. Williams, the Supreme Court came up with tough standards to decide if person was impaired. Johnson said basically if people could brush their teeth and take care of themselves on a daily basis, they were not considered disabled.

“It had become a hard law for plaintiffs attorneys to prevail on,” Johnson said. “The new law provides that an impairment that substantially limits one major life activity doesn’t have to impair other life activities in order to be considered a disability. With the new law, someone only has to be limited in one major life activity, something as simple as hearing, bending, eating, sleeping, walking and thinking, in order to be considered disabled.”

Johnson believes this will increase the amount of litigation under the ADA.

Employers need to pay close attention to issues brought up by employees. Johnson recommends if they have complaints, make sure if they are potentially disabled under the amendment to ADA that the company is engaging in what is called “the interactive process” to see if a reasonable accommodation is possible.

“Employees need to be more cautious with dealing with potential disability issues on the front end to avoid litigation,” Johnson said.

R. Reid McKee, an attorney with Watkins & Eager, PLLC, Jackson, McKee expects the ADA amendments to have significant effects on employers nationwide. He recommends covered employers (businesses with 15 or more employees) familiarize themselves with the new, broader standard for determining what constitutes a disability under the ADA.

“There is little question that the ADA amendments will enable a greater number of employees to claim protected status under the ADA,” said McKee, who specializes in employment and immigration law. “In light of this fact, employers should take the opportunity to re-evaluate their legal obligations to members of their workforce.”

One of the most significant ways in which the definition of disability will be broadened is that many individuals who previously were not considered “disabled” as a result of mitigating or corrective measures, such as medications or other therapies, are likely to be considered “disabled” under the ADA amendments.

“This is because the ADA amendments will soon require courts to ignore the palliative effects of medication and other therapies when determining whether an individual is disabled under the act,” McKee said. “Accordingly, many employees who suffer from medical impairments that fall short of qualifying as disabilities under current law are likely to be considered disabled under the new law. For example, an employee who has a seizure disorder that is effectively controlled by medication is far more likely to be considered ‘disabled’ under the ADA amendments than under current law.”

Timothy M. Threadgill, a partner in Butler, Snow, O’Mara, Stevens & Cannada’s Labor and Employment Practice Group in Jackson, agrees the new act could result in more litigation.

“ADA claims had become a much lesser threat to employers, and attorneys representing plaintiffs shied away from ADA claims due to their low percentage of success in the courts,” said Threadgill, who is chair of the Mississippi Bar’s Labor and Employment section. “The amendments should return ADA issues to the list of items employers need to seriously analyze before taking employment actions or inactions affecting an individual.”

Threadgill said the new law overturns several Supreme Court cases that had limited the law’s reach:

The basic definition of a disability under the ADA is a “physical or mental impairment that substantially limits one or more [of an individual’s] major life activities.” The phrase “substantially limits” is now to be considered “broadly” and “to the maximum extent permitted.” The Equal Employment Opportunity Commission (EEOC) will be revising its regulations to comply with this mandate.

The phrase “major life activity” is also being broadened. Courts had interpreted the phrase to mean activities “that are of central importance to most people’s daily lives.” The amendments reject that definition and provide a non-exhaustive list of major life activities, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

Courts will no longer be allowed to consider mitigating measures (e.g., a hearing aid, medication, prosthetics) in analyzing whether or not an impairment substantially limits a major life activity.

An impairment does not have to permanently limit a major life activity. Non-chronic impairments that are episodic or in remission may still be considered disabilities.

The ADA provides that it is unlawful to discriminate against someone who is not in fact disabled, but is “regarded disabled.” Under the amendments, an individual only must show that the employer excluded the individual from one particular job based on a perceived disability, not a class of jobs or broad range of jobs as he had to do before the law.

Contact MBJ contributing writer Becky Gillette at 4becky@cox.net.

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