By Wendy J. Baker - Oregon Employment Attorney
Sweeping amendments to the Americans with Disabilities Act ("ADA") became effective on January 1, 2009. Because these amendments significantly expand the definition of "disability" under federal law, employers will be relying more than ever on medical providers for guidance about how to make reasonable accommodations for disabled employees.
The ADA Amendments Act ("ADAAA") has created a mild sense of panic among some employment attorneys who are telling their clients to assume that every employee is disabled if they say they are. While this conservative approach may avoid legal challenges, it is not rational advice for the small employer who cannot afford, for example, to sequester a call taker in a private office to accommodate his or her hearing loss.
At some point, you may have been asked by an employer to fill out a lengthy questionnaire designed to answer two questions: (1) is this employee disabled? and (2) is there a reasonable accommodation that will allow this employee to perform the essential functions of his or her job? The answer to the first question will be "yes" more often under the amendments because the ADAAA:
- Broadens the definition of "disability," including what it means to be "substantially limited in a major life activity." This will make it much more difficult to conclude that a person is not substantially limited in a major life activity and therefore is not disabled under the law.
- Expands the definition of "major life activity" by adding the category of "major bodily functions." This includes functions of the immune system as well as digestive, bowel, bladder, respiratory, circulatory and reproductive functions.
- Prohibits taking into account mitigating measures such as medication, prosthetics and assistive technology in determining whether an individual has a disability. (Eyeglasses are the exception to this rule.) This change will expand the number of individuals with qualifying disabilities by making conditions that have been effectively mitigated with treatment, such as certain forms of cancer, diabetes and even hearing loss, protected disabilities under the law.
- Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. There is general agreement among employment law practitioners that this category sweeps in almost anyone who has been treated for cancer within the last few years.
It has never been an easy task for employers or medical providers to determine conclusively whether an individual's impairment is a disability under the law. A new twist to this analysis is that many employers won't take the time to update the questionnaires they send to medical providers when an employee requests an accommodation. For example, under the former ADA, the questionnaire would ask the medical provider to decide whether the employee has a physical or mental impairment that "substantially limits one or more major life activities." A post-ADAAA questionnaire would ask simply whether the employee has a physical or mental impairment. This is because the Equal Employment Opportunity Commission ("EEOC") has been charged with providing a regulatory definition of the term "substantially limits" that lowers the previous standard, but it has yet to do so. In addition, almost anything is a "major life activity" under the ADAAA.
An updated questionnaire should make the medical provider's job easier. If you receive a questionnaire that clearly has not been updated, you should ask the employer for a new one. Alternatively, you can contact me at the phone number or email address below, and I will provide one to you at no charge. I will not use your contact information for any reason other than to respond to your request.
