In February 2007, the EEOC issued its "Questions and Answers about Health Care Workers and the Americans with Disabilities Act." The EEOC's Q&A Fact Sheet revealed a significant bias against healthcare employers and took an aggressive stance interpreting the ADA and its reasonable accommodations requirements. Not a single court in the country, however, has relied on the Fact Sheet in any published opinion in the more than 18 months since its publication by the EEOC, perhaps signaling an increased skepticism by the federal courts on the aggressive interpretation proposed by the Commission.
While the apparent discounting of the Q&A Fact Sheet is a positive sign for healthcare employers, more ominous signs of increased disability litigation loom large. In late June 2008, the U.S. House of Representatives passed the ADA Amendments Act of 2008 by a 420-17 vote, with broad support from business groups such as the Chamber of Commerce and the Society of Human Resources Management as well as disability rights advocates. The Senate introduced the proposal in late July 2008 and is expected to vote when it reconvenes in September. With broad bipartisan support and more than 50 cosponsors to date, the ADA Amendments Act is expected to pass easily. Most observers anticipate that the President will sign the bill into law.
The changes to the Americans with Disabilities Act under the proposed amendments are significant and effectively roll back many Supreme Court opinions over the last 10 years that have narrowed the definition of disability. For example, under the act, an individual's physical or mental impairment will be assessed in its "unmitigated" state when a court determines whether an individual is disabled. In other words, "mitigating measures" such as glasses or medication will no longer be relevant to the disability inquiry, even if such mitigating measures allow an employee to fully perform her job. The result, of course, will be a significant expansion of the number of individuals who may be considered "disabled" and entitled to protection under the ADA. Similarly, the ADA Amendments Act expands the reach of the ADA by replacing the requirement that the impairment must "substantially limit" a major life activity, with "materially restricts." If passed by Congress and signed into law by the President, the Act will become effective Jan. 1, 2009.
So, what does the ADA Amendments Act mean for you?
Like the increase in ADA litigation in the mid- to late 1990s, a significant increase in requests for accommodation, charges of discrimination and litigation over disability related issues in the workplace is likely. Employers will need to review their reasonable accommodation policies and reassess their process for determining whether an individual is disabled and thus entitled to protection under the ADA.
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