AWC Personnel News - October 2008 (Plain Text Version)

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In this issue:
ADA Amendments Signed Into Law: What ADA Changes Mean for Washington Employers
Latest CPI Data
Cost of Living Wage Formulas
Considering Layoffs - Do You Have a Plan?
Police/Fire Compensation Survey Available
State Actuary GASB 45 Online Tool
Organizational Development Services Available
Minimum Wage Increase
Workers’ Compensation Rates May Increase by 3%
Family Leave Insurance Update
Upcoming Conferences and Workshops

ADA Amendments Signed Into Law: What ADA Changes Mean for Washington Employers

On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (the ADAAA), which will dramatically increase the number of employees who may claim protection under the ADA. This legislation will take effect on January 1, 2009.

As most Washington employers know, the new ADA amendments come on the heels of 2007 Washington State legislation expanding the definition of disability under the Washington Law Against Discrimination (WLAD), RCW 49.60. So what impact, if any, will the ADAAA have on employers in Washington? Below is a summary of the ADAAA’s primary changes to federal law, followed by commentary regarding what the changes mean for employers in Washington.

ADAAA Highlights

Individuals seeking protection under the ADA must establish that they have a disability within the meaning of the law. The term "disability" means, with respect to an individual:

A physical or mental impairment that substantially limits one or more major life activities of an individual;
A record of such impairment; or
Being regarded as having such an impairment.

The ADAAA retains this basic definition, but expands ADA coverage in the following ways:

Determination of disability must be made without regard to mitigating measures. Under the U.S. Supreme Court’s decision in Sutton v. United Airlines, 527 U.S. 471 (1999), if an impairment is controlled through medication or assistive devices so that the individual is not substantially limited in a major life activity, the individual would not be considered disabled. The ADAAA explicitly rejects Sutton’s holding, providing that the determination of whether an impairment substantially limits an individual must be made without regard to mitigating measures such as medication, equipment, prosthetics, hearing aids, mobility devices, assistive technology, auxiliary aids or services, or learned behavioral or adaptive neurological modifications (ordinary eyeglasses or contact lenses are the only exception).
Definition of "disability" must be construed broadly. The ADAAA also explicitly rejects the holding of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), in which the Supreme Court recognized a demanding standard for qualifying as disabled, explaining that a substantial limitation as to a major life activity is one that prevents or severely restricts an individual from doing activities of central importance to their daily lives. The ADAAA declares that the term "disability" must be construed in favor of broad coverage, and that the determination of whether an individual is disabled should not demand extensive analysis.
An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Under the ADAAA, an employee may be disabled under the law if he/she previously had cancer and is in remission with no current limitations.
A non-exhaustive list of major life activities is provided. The existing law does not define major life activities, leaving interpretation to the courts and EEOC.

The ADAAA not only adopts many of the activities already recognized by the courts and some others (including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working), but also adds major bodily functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Thus, an individual with an impairment who has no apparent limitations on daily life activities could nevertheless be disabled if some major bodily function were impaired.

Regarded as disabled standard is clarified. Under the ADAAA, an employer might face liability for regarding someone as merely having an impairment, not being disabled. Congress clarified, however, that "regarded as" claims cannot be based on impairments that are transitory and minor. Transitory impairments are those lasting six months or less.

Implications for Washington Employers

Given the significant expansion of the definition of disability under Washington’s discrimination law last year, Washington employers will feel much less of an impact from the ADAAA than will other employers around the country.

Under the WLAD, there are different standards for establishing a disability: one for protection from discrimination and another for reasonable accommodation.

The broader definition applies to provide protection against discrimination, defining "disability" to encompass any medically cognizable or diagnosable impairment that exists as a record or history, or is perceived to exist, whether it is permanent or temporary, common or uncommon, mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job.

This WLAD definition is broader than the definition under the ADAAA, as it has no requirement that an impairment substantially limit a major life activity as is required under the amended ADA. Because Washington employers are already operating under a state-law definition that is more expansive than the ADAAA, the ADAAA should not have a meaningful impact on Washington employers with respect to claims for protection against discrimination.

The ADAAA could have some impact, however, with respect to reasonable accommodation. Washington law defines disability more narrowly for purposes of reasonable accommodation.

To warrant reasonable accommodation under state law, an impairment must exist in fact and: (i) have a substantially limiting effect on the employee’s ability to perform the job; or (ii) medical documentation must establish a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect. The requirement that an impairment substantially limit an employee’s ability to perform job duties makes Washington law somewhat narrower than the ADAAA, which covers impairments that don’t necessarily limit an employee’s ability to work (as long as the impairment substantially limits a broad range of life activities or even a major bodily function).

Thus, to the extent Washington employers intended to rely on the WLAD’s requirement that an impairment limit an employee’s ability to work as a basis for denying reasonable accommodation requests, the ADAAA will change the playing field. Once the ADAAA becomes effective, employers should consider reasonable accommodation for any mental or physical impairment that meets the broad definition of disability under the ADAAA.

Taken together, the recent changes under the WLAD and the coming changes under the ADAAA will move the focus away from whether an individual is disabled, and toward the evaluation of whether and how a disability can be reasonably accommodated by the employer.

In light of these legal developments, Washington employers should:

Ensure that Human Resources staff and managers understand that a broader range of individuals may be considered disabled under the law;
Avoid making employment decisions based on any physical or mental impairment (even those that are temporary or mitigated); and
Be prepared to consider reasonable accommodation for the wider group of individuals who will be deemed disabled under the law.

Written for AWC by Kristin Anger, Summit Law Group