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Top Ten Issues In Employment Law For HR Professionals In Virginia in 2008: #2

Published by on January 15, 2009

We will be posting over the next week the top ten developments in employment law for HR professionals in Virginia in 2008.  The list is in no particular order.  Topic number 2 is: 2008 Amendments To The Americans With Disabilities Act.  More after the break. The ADA Amendments Act, which recently went into effect, retains the “substantial limitation” […]

We will be posting over the next week the top ten developments in employment law for HR professionals in Virginia in 2008.  The list is in no particular order.  Topic number 2 is:

2008 Amendments To The Americans With Disabilities Act.  More after the break.

The ADA Amendments Act, which recently went into effect, retains the “substantial limitation” requirement to establish a disability, but makes it easier to meet that standard.  One purpose of the ADA Amendments Act instructs to reinstate “a broad scope of protection to be available under the ADA.”   Most significantly, the Act:

  • Calls for revision of regulations defining the term “substantially limits”;
  • Expands the definition of “major life activities” by including two non-exhaustive lists:
    • the first list includes many activities that have been recognized (e.g., caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, etc) as well as activities not specifically recognized prior to the Act (e.g., reading, bending, and communicating);
    •  the second list includes major bodily functions (e.g., “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions”);
  • The bill specifically states that mitigating measures such as “medication, prosthetics, hearing aids, assistive technology, learned behavior or adaptive neurological modifications” are not to be considered in determining whether there is an impairment that causes a substantial limitation on a major life activity. Only “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a disability;
  • Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • Provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the “regarded as” definition of disability, unless the impairment is transitory and minor;
  • Provides that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation; and
  • Emphasizes that the definition of “disability” should be interpreted broadly.

The practical impact of these amendments will be to expand the scope of ADA coverage, which is the express intent of Congress.  In other words, employees not previously considered “disabled” under the ADA will now be covered.  Employers will be well-advised to carefully consider whether it is appropriate to refuse to accommodate an employee on the ground that they are not “disabled” given the new standard.  Additional individuals to whom employers will need to offer reasonable accommodations at work.  Employers and their legal counsel will have to address what types of accommodations are reasonable and must be extended to this new class of disabled individuals.

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