Employers Face 'Brave New World' of Expanded Employee Protection

The New “Flexible” Definition of a Disability. In a 2002 decision, Toyota Motor Manufacturing, Kentucky Inc. v. Williams, 534 U.S. 184 (2002), the U.S. Supreme Court had held that “substantially limits” means “significantly restricted” and that an illness that caused only “minor” or “moderate” limitations on an employee’s major life activities would not qualify as an ADA-covered “disability.” The new ADAAA specifically overruled Toyota, stating that the “significantly restricted” test set “too high a standard” for a qualifying disability. Interestingly, Congress went on to note that an older Supreme Court decision, School Board of Nassau County v. Arline, offered a definition of a disability that was more in line with its intent.[FOOTNOTE 2]

It is now up to the Equal Employment Opportunity Commission (EEOC) to issue regulations that will define “substantially limits.” If the EEOC follows Arline, this could be bad news for employers. The plaintiff in Arline had only been hospitalized once for treatment of tuberculosis. The Court held that this one hospitalization was enough to establish that her impairment was a “disability.” If the EEOC states that one hospital stay is enough to make an employee “disabled,” this will surely cause a dramatic rise in ADA-protected plaintiffs.

There Are More “Major Life Activities.” The list of “major life activities” prior to the enactment of the ADAAA was in the EEOC regulations. Now there are two even longer lists, both in the ADAAA.

• First, the ADAAA offers what is described as a “non-exhaustive” list of “major life activities” which include reading, learning, working, “communicating,” “concentrating,” “thinking,” “caring for oneself,” walking, eating and sleeping.

• As a second category of “major life activities,” the ADAAA states that any impairment that interferes with the “major bodily systems or organs” (i.e., neurological, reproductive, digestive, respiratory, circulatory) is a disability covered by the ADA.

Using these new lists, one can envision employees with learning disabilities, mental illnesses, digestive disorders like colitis, or circulatory disorders like high blood pressure coming forward to claim the ADA’s protection, even if the disorder does not significantly impact their daily lives. Again, the universe of potentially disabled people continues to expand.



The Courts May Not Consider “Mitigating Measures.” In what was a victory for employers, the Supreme Court, in Sutton v. United Airlines, 527 U.S. 184 (1999), held that in evaluating whether an employee had a disability, the courts should consider any “mitigating measures,” like medications, prosthetics, or hearing aids, which were available to help that person. Sutton is no longer the law. The ADAAA provides that you cannot consider any “mitigating measures” (except for eyeglasses and contact lenses) in determining whether an employee has an ADA-protected “disability.”

Now, an employee who takes medication for a chronic condition, or uses a hearing aid, a pacemaker or some other device, will qualify as “disabled” – regardless of whether they exhibit symptoms that interfere with their ability to work. Essentially, you are “disabled” even if modern medicine and technology allow you to function well, despite your condition.

The ADAAA Covers Impairments That Are Episodic or in Remission. Under the “old” construction of the ADA, employees who had diseases that were in remission were not protected by the ADA, if they were not currently “substantially limited” in a major life activity. Now, the ADAAA states that employees suffering from “episodic” impairments or impairments in remission are protected under the ADA, if the condition would substantially limit a major life activity when active.

Hence, the employee whose heart disease or diabetes or high blood pressure is treated and controlled, or who may not “show” any symptoms, is now “disabled” under the ADA. Does this mean that the employee with cancer in remission or heart disease that is treated is forever “disabled”? You could argue that no employee will ever be “cured” under the new ADAAA.

Expanded Protection for Employees Who Are “Regarded As” Disabled. The ADA had always protected those who claimed they were “regarded” or “perceived” as disabled, even if they were not presently suffering from any disability. However, these plaintiffs had to prove that the alleged disability would have been “substantially limiting,” in order for them to be protected. Now, the ADAAA provides that employees may claim that they were “regarded as” disabled by their employer even if the impairment would not substantially limit a major life activity.

In a small victory for employers, the new law states that a plaintiff who claims a “transitory” or “minor” impairment may not fit into this “regarded as” group, and employers are not required to provide reasonable accommodations to those employees who are covered only under the “regarded as” prong of the statute.

THE NEW FMLA

The FMLA provides for 12 weeks of leave for employees who suffer a “serious health condition,” need time off to care for a family member with a serious health condition, or have given birth to or adopted a child. The FMLA was amended in 2008, to give military families 26 weeks of “caregiver” leave, to care for wounded military personnel. It also provides 12 weeks of “qualifying exigency leave,” for the parents, spouse or children of members of the Reserve or National Guard who are called to active duty. Employees may use this leave for a broad range of activities, not all of which are related to health, such as military events, childcare, rest and recuperation, counseling, and financial and legal planning.

The FMLA regulations were also amended, effective January 2009, affecting some of the notice and other requirements under the statute. The changes include:

• Employees seeking FMLA leave must follow the employer’s policies in notifying the company of the need for the leave, except in “extenuating” circumstances.

• Employers may implement a policy requiring re-certification of an illness after 12 months, and for chronic conditions every six months.

• A company’s leave administrator or HR department may contact a health care provider to request medical information about an employee, subject to the Health Insurance Portability and Accountability Act (HIPAA) and other medical privacy laws.