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Restoration of the Americans with Disabilities Act

In June of this year, the House of Representatives passed an amended version of the ADA (Americans with Disability Act) Restoration Act. This amended version radically expands the reach and scope of the ADA. The Restoration Act modifies the meaning of the term “disabled” to include a broader class of Americans. This new classification would impose heavier restrictions on employers.

Under the current law, the ADA covers those with “a physical or mental impairment that substantially limits one or more major life activities.” The new Act retains the definition but redefines the term “major life activity” to include an expansive list of activities. The definitional change and list of major life activities is intended to restore coverage for many groups who have been interpreted by the courts to not be disabled under the ADA.

The Act further mandates that the meaning of the term “disability” be construed broadly in every possible way. The Act would redefine “disability” to be any actual, past or perceived physical or mental impairment that substantially limits one or more major life activities. Under this new definition, even impairments that are episodic or in remission, if those impairments would substantially limit a major life activity when active, are considered disabilities. The Act would also cover employees who have impairments that are routinely corrected with medication and other aids. The Act does however leave an exception for ordinary eyeglasses or contact lenses and states that the effects of eyeglasses and contact lenses shall be considered when determining whether an individual is disabled.

The Act also significantly changes the definition of “regarded as” disabled. Under the current law, an individual may be regarded as disabled if the individual establishes that he or she has been subjected to a discriminatory act because of a perceived disability that would substantially limit one or more major life activities. Under the revised Act, a person will be “regarded as” disabled even if the perceived impairment would not limit a major life activity. Basically, in order to be deemed “disabled” an individual need only prove that he or she has a physical or mental impairment and that he or she was discriminated against because of it. There is no requirement that the impairment, whether perceived or real, would substantially limit one or more major life activities.

Under the ADA, businesses with more than 15 employees must make “reasonable accommodations” in their hiring processes, workplace environments, and job duties to allow disabled employees to work. Reasonable accommodations are those that do not impose “undue hardship” on the employer and generally consist of shifting job tasks to other employees, altering when and how job tasks are performed, or providing a disabled employee with unlimited leave that does not result in termination. Some common accommodations that rarely impose an undue hardship include installing ramps and accessible restrooms, hiring interpreters for the deaf or blind, and soundproofing portions of the workplace.

If a disability prevents an employee from performing his or her duties entirely, the employer must reassign the employee to any vacant position of similar pay and status for which he or she is qualified. At the same time, an employer may not disclose to other employees that any of these changes are being made to accommodate a disability; such a disclosure of “medical information” is a violation of the ADA.

Though these accommodations usually do not pose a problem to a big business, they could become burdensome and costly to a small business that does not have the structures in place to make these accommodations in a relatively efficient manner. As an employer it is important to be aware of the possible effects of the ADA Restoration Act and to act accordingly when making business and employment decisions.

© 2008 Ott & Associates Co., LPA

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