Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

As expected, President Bush a little earlier today signed the ADA Amendments Act of 2008 into law.  The Act becomes effective January 1, 2009. The Associated Press has the early details and noted that the bill was signed without public comment or fanfare:

With his father looking on, President Bush on Thursday signed legislation expanding the protections afforded by the landmark Americans with Disabilities Act to those who can use medication or other devices to treat impairments.

I've previously summarized the law in a post last week which can be found here.

Various groups have issued press releases touting the bill again. (As you might imagine, each time something happens on the bill, there's a flurry of press releases that all pretty much say the same thing.) You can read the American Diabetes Association's release here.  NAM's blog post on the subject last week is more than sufficient to get the management reaction to the bill.

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President Bush's signature is expected any day now on the ADA Amendments Act of 2008 (click for my prior posts here), which represent some of the most important changes to federal employment laws in over a decade.  For employers in Connecticut, there is going to need to be some synthesis with Connecticut's anti-discrimination laws so employers should not simply assume the ADA will apply over state law.

But regardless, these amendments are going to have a wide-ranging impact for most employers nationwide.  Here are some of the highlights:

When Do the Amendments Go Into Effect?

January 1, 2009.

Who is Affected by the Changes?

Employers who have been covered by the ADA before (those who have 15 or more employees) are going to be covered by the amendments.

What Changes Have Been Made On How a "Disability" is Defined?

Employers must now adopt a broad standard to determine if someone is "disabled" -- something found in the language of the amendments itself. Courts are to provide coverage to individuals  "to the maximum extent permitted". 

In the short term, this means that more ADA cases are going to pass initial threshold tests. Prior to these amendments, courts dismissed many cases on the grounds that the individuals are not "disabled".  Employers should now assume that more employees are going to be covered by the ADA and make employment decisions with that assumption in mind. 

What is Now a "Major Life Activity"?

Until the amendments, the ADA was silent on what was a major life activity, leaving the issue to the courts to decide. But the new law has a laundry list of activities from thinking to concentrating, from eating to working that is now specified.  In addition,  the operation of any major bodily function is considered a major life activity. For employers, this is again another indication that a "disability" is going to be considered broadly. 

What Should be Done About Mitigating Measures?

Previously, courts and employers had to determine a person's disability including any mitigating measures that the individual had such as prosthetics, medications or hearing aids.  Now, employers and courts must ignore those measures. Employers will now need to make sure that then engaging in the interactive process, these measures are properly separated.  

What About Ordinary Eyeglasses or Contact Lenses?

Despite the provision above, Congress created an exception for ordinary eyeglasses and contact lenses.  Those items CAN be considered when determining if someone is disabled.

Is The Revised "Regarded As" Provision In the ADA as Broad as it Seems?

Probably.  Under the amendments, an individual now must show only that that the employer perceived the individual has having a mental or physical impairment (not that that impairment substantially limits a major life activity necessary).  This is very broad and could potentially be setting the ADA up for a massive expansion in its scope.

But when the impairment lasts for only six months or less and is minor, it won't qualify.  Whether this provision will have a real impact in narrowing the "regarded as" section remains to be seen. 

What's the Takeaway For Employers?

Quite simply, ADA cases are likely to move from "threshold" issues (whether the person has a disability) to "liability" issues (whether the person was actually discriminated against).  Employers defending such claims should understand that ADA claims are going to be defended like many other types of discrimination claims: by showing that the employer has a legitimate, non-discriminatory reason for its decision. 

Employers should also start informing human resource staff  of the changes. These amendments are likely to affect the interactive process and employers may need to provide more accommodations to more of their workforce.  Caution should definitely be exercised in the short-term as employers adopt to these new definitions and rules. 

As always, consult with an employment attorney about how these changes will affect your company specifically.  And obviously, if you'd like any particular help for your company, feel free to drop me a line. 

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This afternoon, the U.S. House of Representatives approved by voice vote, the ADA Amendments Act of 2008 (S.3406), with the amendments made by the U.S. Senate last week.  I've recapped the details before in prior posts.  Reuters has the details of today's House action in.

Numerous groups and politicians released press releases this afternoon praising the bill's strengths:

• The American Diabetes Association encouraged the President to sign the bill and said that if signed into law, the bill "will take critical steps toward restoring the 1990 law to its original intent to protect such individuals from discrimination." 
• House Majority Leader Steny Hoyer said:  “By passing this bill, we have ensured that the definition of “disability” will be construed fairly and broadly. And we have brought millions of our fellow-citizens, who were previously shut out, back where they belong, and back where we need them: under the ADA’s protection.  Together, we have made up a coalition as broad and deep as the one that passed the ADA 18 years ago. We are members of the disability community, struggling for fair and equal treatment; business groups, eager for new pools of talent; and leaders of both parties.

Numerous other blogs also continue to post on this as well, including a post today by George's Employment Blawg. 

Overall, for employers in Connecticut, this new law is going to raise a whole host of issues because Connecticut's anti-discrimination is structured very differently.  How these two laws are going to interact, particularly in light of the Connecticut Supreme Court's decision  in Curry v. Allan S. Goodman, earlier this year, is something I'll take up in some upcoming posts.

At this point, Connecticut employers should act cautiously and look at each disability decision on a case by case basis.  In some instances, one could envision Connecticut's anti-discrimination laws might have different application than federal law. 

One thing's for certain: Employment lawyers who represent employers (like myself) are sure to get more than a few phone calls asking to sort all this out. 

(H/T World of Work)

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Late last week, the Senate finally passed the compromise version of the ADA Amendments Act, (S.3406, which is available here) which I’ve covered before. The bill needs to be reconciled with the House version, but final passage and approval by President Bush is now expected this month.

Other blogs have very adeptly recapped the significant changes such as World of Work, and Manpower Employment Blog . And there is this ABA Journal article recap too.

As Workplace Horizons recapped:

The bill, set to become effective January 1, 2009, if enacted, would define the term "disability" as "a physical or mental impairment, a record of such impairment, or being regarded as having such impairment." It would provide that employees are protected against discrimination because of a disability. It would provide, however, that while an individual regarded as having a disability is protected against discrimination, the "regarded as" provision would not apply to an individual with a condition that is minor, or that is a "transitory" condition lasting or expected to last six months or less.

Some have lamented the changes as far-reaching and I’m sure others think that they don’t go far enough.

But at the ABA Labor & Employment Conference in Denver on Friday, EEOC Associate General Counsel Peggy Mastroianni shared her thoughts on the compromise bill in the midst of a presentation on leaves of absences. 

Mastroianni said that both management-side representative and plaintiff and union groups worked hard with senators to “craft something that both sides could live with."

She added, “You know that when U.S. Chamber of Commerce and the American Diabetes Association agree on a bill, it’s a good compromise."

Mastroianni predicted that one consequence of the ADA Amendments Act will be more analysis of the actual disability and condition that persons have. As she remarked, this analysis will “go to the heart” of the ADA, something that she believed had been lacking in recent years.

Lastly, Mastroianni emphasized the usefulness of the guidance released last week on addressing performance-related issues under the ADA. In an upcoming post, I’ll discuss a specific provision that some may overlooked in their initial review of the guidance. 

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In the waning hours late last week before Congress took its summer vacation, Congress was busy debating (or in some cases, not debating) some key employment bills.  These all still require approval from the one side of Congress or the other, but these bills are getting closer to becoming law.  (For a refresher on how a bill becomes a law, you can always click here.)

Paycheck Fairness Act

Long-time Representative Rosa DeLauro, from the Third Congressional District in Connecticut, must be a happy camper this week after the Paycheck Fairness Act she sponsored passed the House of Representatives on July 31st by a 247-148 vote.  The bill would limit the defenses employers have to an Equal Pay Act claim and amend the FLSA to add claims for compensatory damages and punitive damages.  (H/T Workplace Prof)

The bill now goes on to the Senate for a voice where its prospects are far from clear. Groups like the Heritage Foundation claim the act would "give[] a windfall to trial lawyers, exposing employers to unlimited punitive damages for unintentional mistakes."  On the other hand, others, like the National Women's Law Center, claim the bill would merely close the "gender gap" that still exists.  It should be noted that this bill differs from the "Fair Pay Act".

ADA Amendments Act (f/k/a ADA Restoration Act)

After passing the House earlier this year, the ADA Amendments Act of 2008 has stalled at the Senate.  However, late last week, Senator Tom Harkin and Senator Orrin Hatch introduced a new bill (S. 3406) that makes two significant changes to the House bill.  You can download the text of the bill here.   With 64 co-sponsors, these changes are getting close enough to win over support of the business community (and ward off a veto threat).  If passed, this new bill would need to be reconciled with the bill passed by the House earlier this year.   

What are the two changes?

• First, the bill eliminates a definition for "substantially limits", which was in the House bill.  The new bill would advise courts to simply consider impairments that are of central importance of people's day-to-day activities.
• The other change will only affect the education-related portion of the bill.  That change now says that reasonable modifications to educational policies are not mandated if the modifications would fundamentally change the program. 

E-Verify Extension

Florida Employment Law Blog reports that the House of Representatives has approved a bill that would extend E-Verify, the federal government's electronic employment verification system, by five years.  The bill, HR 6633 or the Employee Verification Act of 2008, passed by a 407-2.

The bill now moves to the Senate for a vote; however, the Senate is in recess for the next five weeks.

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Nearly eight months ago, I asked the question: Will the Americans with Disabilities Act Be Amended?  

At that point, I indicated that an ADA Restoration Act Bill of 2007 was not yet a "hot topic" but as election season heated up, we could see some action on some proposed amendments.  There have been some followup posts both in January and again earlier this month.

Now, the answer my prior question, I think the answer is likely "yes". 

Within the last few weeks, a compromise bill (now titled the ADA Amendments Act of 2008) has been fashioned and on Wednesday, it passed the U.S. House of Representatives overwhelmingly (402-17).   All Connecticut representatives voted in favor of it.   The bill (H.R. 3195), can be downloaded here,  

The Workplace Horizons blog and the Ohio Employer's Law Blog have some initial feedback and reaction to the bill, as well as Disability Law 2.0. The New York Times had this mainstream report.  For additional blogs from advocacy groups, see the American Association of People with Disabilities blog and the NAM (National Association of Manufacturers) blog. 

So, what would the ADA Amendment Acts do?

On its face, it strives to overturn various U.S. Supreme Court cases that the bill's sponsors believe narrowed the ADA too much.  Thus, the bill broadens definitions of various terms.  For example, it defines the phrase "substantially limits" to mean "materially restricts".  It also features some aspects seen as "for employers" such as limiting "regarded as" claims as impairs that last or are expected to last for more than six months.

As Jon Hyman notes:

The biggest changes, however, come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of "disability." These amendments expressly reverse that ruling:

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• The determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures, such as medications, equipment, assistive technology, auxiliary devices, learned behavioral, or adaptive neurological modifications.
• Eyeglasses or contact lenses, however, can still be considered in determining whether an impairment substantially limits a major life activity.

There is no date yet for a vote in the Senate.  As the term continues and it becomes more likely that the bill is going to pass, I'll provide an update with additional details about the proposed provisions.

For now, employers should stay tuned for future legislative developments and take an opportunity now to understand the scope of the ADA. If it is passed, the bill may make it more difficult for employers to get "summary judgment" in ADA cases and is sure to raise a whole new set of issues related to the definition of "disability".  For employers in Connecticut, ADA amendments could be particularly tricky because of the risk that courts in Connecticut (which tend to follow the ADA lead) will use the amendments to interpret our state disability discrimination law, which has developed somewhat differently.

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