Employers Face Significant Challenges Complying With the ADA Amendments Act

This article appeared in the Summer/Fall 2012 issue of “Virginia Human Resources Today” magazine.

Are you aware of the dramatic developments within the last year as a result of the ADA Amendments Act of 2008 (“ADAAA”)? If not, read on!

In amending the ADA, Congress expressed its view that the definition as to whether a person was “disabled” was being interpreted too narrowly and that persons with impairments such as cancer, diabetes and epilepsy, to name a few, were being improperly denied protection under the law. The ADAAA states that the definition of disability should be interpreted broadly in favor of coverage. In March 2011, the EEOC published final regulations regarding the ADAAA. The EEOC lists dozens of specific medical impairments that it opines should “easily” be found to “substantially limit” a major life activity and would therefore be considered a “disability” under the ADAAA. 29 C.F.R. § 1630.2(j)(3)(iii).

The EEOC’s most recent ADA statistics are telling. Last year there were almost 26,000 ADA charges filed; more than 1 out of every 4 charges now allege an ADA violation. More significantly, last year the EEOC recovered over $103 million for ADA claims, which continues a trend of sharp increases over the last few years.

There are many important developments as to an employer’s obligations as under the ADAAA. This article only touches on a couple key issues.

Expansion of Medical Impairments Covered as “Disabilities.” The EEOC is aggressively testing the boundaries of the new law in court. While employers should still seek appropriate medical documentation from an employee who seeks an accommodation based on a purported mental or physical impairment, employers should focus more attention as to the specific accommodation that the employee seeks so that the employer can determine whether the request is reasonable and/or necessary (or would constitute an undue hardship). Stated another way, future cases will place more emphasis on the employer’s actions and conduct, not a plaintiff’s health.

Additional Leave as a Reasonable Accommodation and “Inflexible” Leave Policies. What should an employer do with an employee who does not have FMLA leave, or has exhausted his available leave, but who requests additional leave from work based on a purported medical impairment? This question continues to pose major challenges for employers. Moreover, the EEOC will not hesitate to litigate cases in which employers apply “inflexible” leave or attendance policies. (Search the terms “EEOC” and either “Verizon,” “Sears” or “Supervalu” to see a few of the EEOC’s results on this topic.) While an employer is not obligated to grant an indefinite leave, it is difficult to determine where to draw the line. Whenever an employee seeks leave, continued leave or a modification of a work rule due to a medical condition, employers must evaluate the request on an individual basis, maintain good documentation, and ensure that they are not acting on the basis of a rigid policy.

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These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They do not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.