The ADA Amendments, which took effect January 1, 2009, expand workplace protections, prohibit discrimination against applicants or employees with a disability, provide reasonable accommodation requirements, and prohibit discrimination and retaliation.

Covered employers under the ADA are private employers who employ 15 or more employees each working day, which is a reduction from the previous requirement of 20 or more employees, during each of the 20 or more calendar weeks in the current or proceeding calendar year. This includes an agent of the employer.

Eligible employees included a qualified individual with a disability, a record of disability, or an individual who is regarded as having a disability or someone who is associated with a disabled individual, i.e., child, dependant, etc.

Disability is to be considered in the unmitigated state (without assistive devices, etc.).

A disability is defined as a physical or mental impairment that substantially limits one or more major life activities that lasts more than six months. However, the Amendment no longer requires the individual to have an impairment. It is sufficient that the employer perceives the person to have an impairment.

A physical or mental impairment means a physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the body systems.

A mental impairment is any mental or physiological disorder, such as mental retardation, organic brain syndrome, emotional mental illness, including specific learning disabilities.

“Substantially limits” is defined as an individual who is unable to perform or is significantly limited in ability to perform compared to the average person. Three factors to consider include severity, duration or expected duration, and permanent of long-term impact.

“Major life activities” has been expanded with the 2008 Amendment to include more persons with impairments. The new rules of construction under the ADA require only one life activity be impaired to be disabled. Disability includes episodic impairment if substantially limiting when active, e.g., migraines, bipolar disorder. Disability is determined without consideration of mitigating measures, e.g., medication, medical supplies, equipment or appliances, assistive technology, auxiliary aids or services, and learned behavior or adaptive neurological modifications.

Qualified individuals with a disability are protected under the ADA. If the individual suffers a non-work related injury, which lasts less than six months, the employer does not have to accommodate, but if it is a disability that will last more than six months, the employer must accommodate.

To be qualified under the Act, the individual must satisfy the requisite skill, experience, education, and other job related requirements of the position (minimum background requirements) and be able to perform the essential functions of the position determined by the employer with reasonable accommodations if necessary (minimum performance requirements). The essential functions of a job are determined by the fundamental job duties of the position based on the written job description, the amount of time spent performing the job, the consequence of not performing the job, the terms of the labor contract, and the work experience of past/present incumbents.

In response to the ADA Amendments, the employer should request medical verification, engage in an interactive process to discuss limitations and possible accommodations with the individual/employee. All discussions as well as proffered accommodations should be documented. Therefore, accommodations should be reviewed and reasonable accommodations must be implemented.

The employer is obligated to accommodate only known disabilities, which implies an employee is obligated to notify employers of their disability. Sometimes knowledge is imputed from circumstances. The Persons with Disabilities Civil Rights Act requires notice of any need for accommodation within 182 days.

The ADA defines reasonable accommodations as providing:

• Access/removing barriers
• Job restructuring
• Providing modified work schedules
• Assignment to a vacant position
• Modification of equipment or devices
• Provision of readers or interpreters

In determining a reasonable accommodation, the employer must:

• Determine the purpose and essential function of the job
• Consult with the disabled individual to find out specific abilities and limitations
• Identify potential reasonable accommodations
• Assess effectiveness of accommodations
• Consider preference of disabled individual and selection of accommodations that best serves the needs of both parties

The ADA does not require an accommodation which would impose an undue hardship. The ADA defines undue hardship as “significant difficulty or expensive.” This is further defined as any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business. The accommodation cannot be one that poses a safety threat or direct threat to the health of the qualified individual with a disability.
A leave of absence may also be considered a reasonable accommodation. Examples of reasons for leave include medical treatment for disability, repair of prosthesis or equipment, temporary adverse conditions in the work place, training to use an assistive device or dog. No minimum period of employment is needed to be eligible for leave. There is no maximum of leave. Indefinite leave is not required. Undue hardship is a defense. The employer is not required to maintain healthcare coverage during a leave of absence. Reinstatement is required unless it is an undue hardship to hold the position or the employee cannot perform the essential functions upon their return to work. The employer can provide an alternative to leave that keeps the employee on the job if reasonable. Reasonable accommodations may also include a modified work schedule to accommodate employees who have scheduled medical treatment or require rest periods or whose disabilities affect eating or sleeping schedules. The employer might have to provide flexible work hours, flexible work weeks, or part-time schedule. No restriction on a commensurate reduction in benefits.

If an employee suffers a work-related injury and is disabled under the definition as indicated under the ADA, return to work is required unless there is an undue hardship.