Make a Resolution: ADA Training

As the New Year rang in, the Americans with Disabilities Act (ADA) Amendments Act took effect, bringing millions more people within the ADA’s protection. The ADA Amendments Act’s (ADAAA) vast expansion of “disability” means that many more applicants and employees are eligible for reasonable accommodations and that employers need a fresh ADA compliance strategy.

In the past, employers often won ADA cases by filing motions for summary judgment and establishing that the plaintiffs were not disabled, avoiding expensive jury trials.

Employers will need to alter their approaches and take a page from what worked in the sexual harassment context. Employers can curb litigation risks through ADA training separate from general equal employment opportunity or nondiscrimination training.

Although training budgets are being squeezed in these tough economic times, training could save employers time and expense in the long run.

The ADAAA broadened the ADA’s definition of disability by expanding the term “major life activities,” doing away with the “substantially limited” requirement for those regarded as having a disability, and overturning two U.S. Supreme Court decisions that interpreted the ADA’s definition of disability narrowly.

The ADA still covers only qualified individuals with disabilities and provides that to be disabled, an individual must have “a physical or mental impairment that substantially limits one or more major life activities,” or must have a record of such an impairment, or must be regarded as having such an impairment.

However, with the ADAAA, the only requirement for the “regarded as” prong is that the impairment must not be minor—a criterion the law does not define—or transitory, defined in the law as lasting less than six months.

The ADAAA also defines and vastly expands the term “major life activities” as including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” The amendment states that major life activities include the operation of a major bodily function, such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.”

Decisions Overturned

In addition, the ADAAA overturns two U.S. Supreme Court decisions that had limited the ADA’s coverage. One decision let employers consider the ameliorative effects of mitigating measures, such as hearing aids and medication, when determining whether someone has a disability (Sutton v. United Airlines Inc., 527 U.S. 471 (1999)). The ADAAA instead requires that employers evaluate impairments without regard to mitigating measures. Thus, a mental disorder such as depression controlled by medication must be considered in its unmedicated state to determine if it is a disability. The ADAAA does have an exception that permits employers to take into account the effects of eyeglasses and contact lenses.

The ADAAA also overturned a Supreme Court decision that concluded that the term “disability” should be viewed narrowly and that said the ADA requires a demanding standard to prove one is disabled (Toyota Motor Manufacturing, Kentucky Inc. v. Williams, 534 U.S. 184 (2002)). The ADAAA instead provides that disability should be viewed broadly and asks the U.S. Equal Employment Opportunity Commission (EEOC) to issue regulations to further address this issue.

Another important change requires that impairments that are episodic or in remission qualify as disabilities if in their active stage they would substantially limit a major life activity. This revision, along with the one regarding mitigating measures, moves numerous conditions such as cancer, diabetes and epilepsy from a case-by-case determination to almost certain status as ADA disabilities.

The Argument for Training

The ADAAA does not require ADA training, but provides a strong business case for it.

Sexual harassment training isn’t specifically required by Title VII of the Civil Rights Act of 1964 either, but employers recognized the importance of regular sexual harassment training after the U.S. Supreme Court decided Burlington Industries Inc. v. Ellerth (524 U.S. 742 (1998)) and Faragher v. City of Boca Raton (524 U.S. 775 (1998)). Those decisions established an affirmative defense for employers with effective sexual harassment policies. Effective harassment training both reduced inappropriate workplace conduct and gave employers an affirmative defense if litigation arose.

Employers similarly should recognize the value of training HR personnel, managers and supervisors on the ADA and its amendments. While the ADAAA did not alter the ADA’s reasonable accommodation and nondiscrimination requirements, many more individuals will qualify for these protections. So it’s essential that key professionals understand what the ADA, as amended, involves.

Training should include review of:

Who is covered. Given the expansion of “major life activities” and the removal of mitigating measures from consideration in disability determinations, almost anyone who has, or is regarded as having, a serious impairment or disease that is not temporary will qualify as disabled. Ensure that training covers any applicable state laws prohibiting disability discrimination.

How hiring policies and practices are affected. Since applicants are covered, re-evaluate hiring processes. Case in point, reading is now a major life activity. Thus, you will need to look at how reading may affect your hiring process. If reading isn’t an essential function of the job, such as for a maintenance staff position, and if a candidate can’t read, an employer probably will have to provide a reasonable accommodation to help the candidate complete the application process.

However, if reading and/or writing are essential job functions, the employer doesn’t need to provide such assistance. The amended ADA does not require employers to change essential job duties. And you are not expected to be a mind reader—you will need to offer assistance only if the applicant requests help.

Employers also should remind those who screen applicants that employers are not allowed to ask whether individuals have disabilities. Interviewers can ask whether someone is able to perform essential job functions with or without accommodation.

The interactive process and its requirements. When someone requests an accommodation, the ADA requires an employer to engage in the interactive process with the person to determine if a reasonable accommodation can be provided to enable that person to perform the requirements of the position. However, many courts have held that an individual does not need to use the magic words, “I’m requesting an accommodation for my disability.” Rather, if someone simply states, “I need help or assistance because of my impairment,” that triggers the process.

Here are some additional examples of triggers for the interactive process:

• An employee tells his supervisor he is having trouble reading an internal memo because of his poor vision.
• An employee asks her supervisor if she can come to work two hours late because of an appointment with her physical therapist.
• An employee informs his supervisor he cannot work overtime because of his sleep apnea.
• Supervisors need to be trained to report statements like these to the HR department.

What accommodations are reasonable. Determining reasonable accommodations varies greatly according to employer and position. It may be unreasonable to require a small construction company to provide a bucket truck to an employee who cannot climb a ladder, but this accommodation may be reasonable for a large utility. Train supervisors to work with HR and corporate counsel to determine reasonable accommodations.

What is prohibited. In addition to providing training on nondiscrimination and reasonable accommodations, teach managers that harassment actions can be brought under the ADA. Of the 27,262 total harassment charges made to the EEOC and state fair employment practices agencies in fiscal 2007, 4,934 were for disability harassment—third after race and sexual harassment and more than the amount for age, national origin or religious harassment. Train all employees to prohibit harassment and to report complaints of impairment-related harassment to HR.

Similarly, retaliation is prohibited. If an individual requests an accommodation, regardless of whether the employer provides the accommodation, that individual is protected from retaliation for making the request.

It’s also important for training to cover the interplay between the ADA, as amended, and other laws, including the Family and Medical Leave Act, state nondiscrimination and state family-leave statutes, workers’ compensations laws, and Social Security disability.

The amendments will make ADA compliance more complicated and expansive. Now is the time to train the entire HR team and management on the ADA—to minimize mistakes and, should you have to go to trial, aid your defense.

This is one New Year’s resolution you need to keep.

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The author is a labor and employment attorney in Cozen O’Connor’s Philadelphia office and can be reached at vzellers@cozen.com.

Web Extras

• SHRM article: Out with the Old ADA, In with the New (SHRM Online Workplace Law Focus Area)
• SHRM article: President Bush Signs ADA Amendments Bill (HR News)
• SHRM white paper: The ADA and Interview/Application Questions
• SHRM white paper: Drug Testing and the ADA
• SHRM article: Reasonable Accommodation and Undue Hardship (Legal Report)
• SHRM web page: SHRM Online Workplace Law Focus Area home page