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Employment Law Alert – Upcoming ADAAA Changes & Potential Implications to California Employers

October 24, 2008 |
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In the early 1990’s, Congress enacted the Americans with Disabilities Act (“ADA”) which prohibits discrimination against persons with physical or mental disabilities in employment, housing and public accommodations.  At the same time, the California legislature amended the Fair Employment and Housing Act (“FEHA”) to expand the scope of its protections against discrimination, harassment and retaliation to disabled persons.  The Federal and California State statutes have significant differences in what constitutes a “disability” and the scope of an employer’s obligations.  These differences became more apparent in the wake of contrasting Federal and California court decisions.  In 2008, Congress amended the Americans with Disabilities Act.  While in many respects the amendments will not alter the existing obligations of California employers, there are a few areas in which the new Federal legislation will impact employers in this state.

Changes Resulting from the ADAAA

Definition of Disability
The ADA defines a “disability” as a physical or mental impairment that substantially limits a major life activity of an individual.  Several U.S. Supreme Court cases have narrowly construed this definition and have interpreted “substantially a limit” to mean “prevents or severely restricts.”  While the ADAAA does not alter the statutory definition of disability, the ADAAA rejects the Supreme Court’s interpretation of “substantially limits.”  The ADAAA states that the definition of disability should be construed in favor of broad coverage of individuals.  The ADAAA also makes clear that Congress intended to apply a less demanding standard than that applied in the courts.  Finally, the ADAAA tasks the Equal Employment Opportunity Commissions (the “EEOC”) with promulgating new regulations regarding the definition of a “disability,” consistent with the ADAAA.

Mitigating Measures
The Supreme Court narrowed the group of people covered by the ADA when it held that mitigating measures, such as medication or devices, are to be considered in determining whether or not a person is substantially limited in a major life activity.  The ADAAA provides that the ameliorative effects of mitigating measures are not to be considered in determining whether and individual has an impairment that substantially limits a major life activity.  However, the ADAAA carves out an exception for “ordinary eyeglasses or contact lenses” that are “intended to fully correct visual acuity or eliminate refractive error, which shall be considered in determining whether an impairment substantially limits a major life activity.

Major Life Activity
The Supreme Court had previously defined a “major life activity” under the ADA as an activity that is “of central importance to most people’s daily lives.”  The ADAAA sets forth a non-exhaustive list of major life activities, including caring for one’s self, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, and major bodily functions (including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions).

The ADAAA also clarifies that an impairment need only substantially limit one major life activity.  Further, under the ADAAA an impairment that is episodic or in remission is a disability if the impairment would substantially limit a major life activity when the impairment is active.

Regarded As
Under the ADA and previous cases law, an individual was “regarded as” disabled if the individual could show that the employer perceived the individual as having a substantially limiting impairment.  The ADAAA drastically expands this definition.  The ADAAA states that an individual is “regarded as” disabled if he or she “has been subjected to an action that is prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”  The ADAAA does note, however, the “regarded as” definition does not apply to impairments that are transitory and minor.  The ADAAA defines transitory as an actual or expected duration of 6 months or less.

In addition, the ADAAA provides a safe haven for employers by stating that an employer is not required to provide a reasonable accommodation to an individual who is covered only under the “regarded as” prong of the Act.  Therefore, the newly expanded “regarded as” definition will likely be of most significance in cases where an adverse employment action has actually occurred.

What Is the Overall Anticipated Effect of the ADAAA for Employers

The overall effect of the ADAAA will be that, under federal law, more employees will be deemed to be “disabled” and will qualify for reasonable accommodations and protections from alleged discrimination.  This will likely increase the number of disability discrimination suits filed under federal law.  In addition, it is likely that the focus of ADA litigation will move from whether or not an individual meets the definition of “disabled” toward the questions surrounding the employer’s actions and the motivation for such actions.

What Does the ADAAA Mean for California Employers

Employers in California with five or more employees are subject to the California Fair Employment and Housing Act (“FEHA”).  FEHA has historically provided broader protections to California workers than the ADA.  Under the FEHA, disability is defined as an impairment that limits a major life activity.  Unlike the ADA and ADAAA, no substantial limitation is required.  According to California Government Code § 12926, a mental or psychological disorder or condition or physical disability limits a major life activity if it makes the achievement of the major life activity difficult and “limits” are to be determined without regard to mitigating measures.  Further, major life activities are to be construed broadly and include physical, mental and social activities and working.  Therefore, the ADAAA ‘s expanded definitions of disability and major life activity, and the admonition that mitigating factors shall not be considered in whether or not an impairment rises to a disability, should not enlarge the obligations of California employers.  California employers should however, monitor the promulgation of regulations and court decisions under the new ADAAA.  Should such regulations and decisions further expand the protections afforded to individuals, employers should explore whether those regulations and decisions have broadened the protections beyond those required by the FEHA.

It appears likely that the ADAAA may provide broader protections for individuals than the FEHA in “regarded as” cases.  As discussed above, under the ADAAA, an individual is “regarded as” disabled if the individual “has been subjected to an action that is prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”  Under the FEHA, an individual is “regarded as” disabled if that individual is perceived to be limited in a major life activity.  Thus, the ADAAA could prove to require greater protections for individuals because the impairment does not have to limit a major life activity. However, as noted above and in contrast to California case law , under the ADAAA employers need not provide reasonable accommodations to employees who are only covered under the “regarded as” prong.

To avoid an increase in the number of “regarded as” claims, employers should consider means to isolate managers who make the decisions about hiring, firing, promotions or compensation changes, from medical, health, workers’ compensation, family and medical leave, and other similar personal information about employees to avoid the implication that an employee was subjected to a prohibited action because of a perceived physical or mental impairment.  This may be problematic for smaller employers, especially those who do not have distinct managers that handle human resources and benefits issues.  All decision makers should be trained about their responsibility to base employment decisions on legitimate factors other than a perception of mental or physical impairment.

What Should Employers Do

Employers should review their current policies and practices to ensure that they comply with the ADAAA by January 1, 2009.  California employers should train managers and employment action decision makers about the expanded coverage for individuals who are “regarded as” disabled, even if the existence of a disability is unproven.  Employers should expect that regulations and case law interpreting the ADAAA will be promulgated, and be aware that forthcoming regulations and case law may further expand the protections afforded to impaired individuals.  Any updates should be communicated to employees, and workplace policies and practices revised accordingly.

Attorneys in the Berliner Cohen Employment group will be pleased to provide further information regarding the matters discussed in this Alert:

Roberta S. Hayashi

Christine Long

Kara L. Arguello

Kate Wilson


Berliner Cohen’s experienced employment law attorneys advise and represent employers and managers on a full range of legal issues affecting the workplace, including harassment and discrimination, unfair competition and trade secrets, wrongful discharge, wage and hour issues, and labor disputes.  Berliner Cohen is one of the largest law firms in San Jose serving the business and regulatory needs of private business and public agencies.  For almost 40 years, the Firm has developed the special expertise required by a diverse client base consisting of some of Silicon Valley’s largest corporations, new ventures, leading real estate developers, cutting-edge software manufacturers, healthcare providers, mortgage banking companies, municipalities and public agencies.  Berliner Cohen also meets the growing demands of the San Joaquin Valley with its expanding office in Merced.

©2008 Berliner Cohen.  This Alert is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship and no attorney-client relationship is created through your use of the Berliner Site or your receipt of the materials.