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The Expanded Definition of Disability Under the ADAAA

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January 2013 will mark the two-year anniversary the final regulations to the Americans with Disabilities Act Amendments Act or the ADAAA took effect.  As we move into the third year of these new “employee friendly” regulations, it would serve to take a moment to review the prior and current state of the law. 

The Americans with Disabilities Act (ADA) 

In July 1990, the Americans with Disabilities Act became law.  The purpose of the ADA is to provide for the elimination of discrimination against individuals with disabilities.  Disputes under the original ADA focused on the definition of disability.  Impairments such as mental illness or mental disability were often disputed with some level of success.  Interpretation centered on whether an individual was disabled rather than the accommodation an employer could provide to assist that individual in performing his or her job.

The ADA Amendments Act (ADAAA)

In September 2008, the ADAAA was signed into law.  Final regulations became effective in March 2011.  Under the ADAAA, the focus shifted from a determination of whether an individual was disabled to a determination of the accommodation that could be provided to the disabled individual.    

The ADAAA defines a disability as an impairment that substantially limits one “major life activity.”  The original ADA regulations contained a list of nine major life activities that were considered centrally important to most people’s daily lives.  The ADAAA final regulations greatly expanded that definition.  Under the final regulations, the list was expanded to include 19 activities.  Now, limitations in activities such as working, thinking, communicating, learning and concentrating are considered major life activities under the ADAAA and result in an employee being classified as disabled when impaired in any one of those activities.

In addition to the list of major life activities, the ADAAA final regulations also provided a list of specific impairments now presumed to constitute a disability.  Individuals with impairments such as bipolar disorder, post-traumatic stress syndrome and obsessive compulsive disorder are now presumed disabled under the final regulations.  This resulted in a widening of the scope of possible disabilities under the Act.

The final regulations also eliminated consideration of mitigating measures in determining whether a disability exists.  Under the prior ADA, mitigating measures included assistance such as medication and medical equipment.  Determining whether an employee was limited in activities took into account the effect of these assistance measures.  As a result, the positive effects from these aides were a factor in the determination as to whether a person was disabled.  Under the ADAAA final regulations, the effects of the mitigating measures are largely ignored in the consideration.  Now, mitigating measures have been limited to eyeglasses and contact lenses.  Thus, even if an individual is taking medication, an accommodation may still be required. 

The Effect of the ADAAA Final Regulations

The ADAAA final regulations greatly expanded the population of employees and individuals considered disabled.  The focus has now shifted from one of a determination as to whether a person is disabled to a determination of the accommodation that can be provided and whether this imposes an undue hardship on the employer. 

The reasonable accommodation analysis begins after the employer is put on notice that a disability exists.  However, unless the disability and adverse impact on job performance is obvious, the burden of disclosing the disability still remains on the employee.  In other words, if the employee does not disclose, the employer is not under an obligation to consider an accommodation.

Those employers with employees who have identified disabilities are required to consider whether a reasonable accommodation is possible to assist the employee in performing his or her required duties.  Employers are expected to consult with employees regarding (1) potential accommodations, (2) the cost of the accommodations and (3) the employee’s preference.  Unless the accommodation will cause an undue hardship on the employer, employees who have identified disabilities are expected to be accommodated. 

The result of the shift from disability to accommodation is an increase in cost to the employer.  Employers have been placed in a position where the disability element is significantly easier to satisfy.  The expansion provides a significant opportunity for abuse by an employee, potentially causing the employer to expend significant time and resources in consulting with employees regarding accommodations to be made as well as implementation of agreed upon accommodations.

Practice Pointers

With the expansion of the number of employees who may be covered under the ADAAA, documentation plays an even more important role in the employer/employee relationship.  Employers, when presented with a claim of disability from employees, must fully evaluate the employee claim and discuss possible solutions with the impaired employee.  Employers are not required to provide the accommodation demanded by the employee.  Accommodations that place an undue hardship on the employer can be denied.  The optimal solution is for employers to collaborate with the employee to arrive at an accommodation that helps the employee overcome his impairment without resulting in a significant cost to the organization.  Accommodations, meetings and employee progress should be fully documented throughout this process.