The ADA Amendments Act:
What Changed, and
What Does It Mean to You?
Spectrum Health Occupational Services
Employer Advisory Council
April 26, 2011
William H. Fallon
Labor and Employment Attorney
www.millerjohnson.com
The information presented and the written materials have
been prepared for informational purposes only and are not
legal advice. They are not intended to create and do not
constitute a lawyer-client relationship. Before acting on the
basis of any information or material, readers who have
specific questions or problems should consult their lawyer.
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ADA Refresher
ADA Created Four Obligations for Employers:
1. Make reasonable accommodations for an
individual’s disability, if necessary for the
individual to perform the essential
functions of the job – unless the
accommodation would impose an “undue
hardship.”
ADAAA means: Expect this to happen
much more often.
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ADA Refresher
2. Do not discriminate because of a
disability (or because the employer
regards the person as having a
disability).
ADAAA means: The pool of potential
plaintiffs is now enormous.
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ADA Refresher
3. Limit medical examinations and inquiries
of applicants and employees.
 Applicants: Post-offer only
 Employees: Job-related and
consistent with business necessity
4. Keep medical information strictly
confidential.
ADAAA means: The rules are the same, but
many more people will be affected.
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ADA Refresher

Who is Protected by ADA?
-- An individual who
♦ has a physical or mental impairment that
substantially limits a major life activity,
♦ has a record or history of such an
impairment, or
♦ is regarded as having a disability
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ADA Refresher
To Be Protected by ADA, the
Individual Must Be “Qualified”:
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Qualified = Able to perform the
essential functions of the job, with or
without reasonable accommodation
Refresher: Essential
Job Functions
What determines whether a function is
“essential” or “marginal”?
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The employer’s judgment
The written job description
The amount of time spent performing the
function
The consequences of not requiring someone
in the job to perform the function
Terms of a collective bargaining agreement
The actual experiences of this individual and
others in your workplace
The ADAAA - 2008
What Did the ADA Amendments Change?
 Actual Disability:
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Expanded the category of “major life activities”
Relaxed the standard for a “substantial” limitation
Removed mitigating measures as a factor in
whether someone has an ADA disability
Instructs that the term “disability” shall be
construed in favor of broad coverage
Created a broad definition of “regarded as”
disabilities – for discrimination claims only
What Is A “Disability”?
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A physical or mental impairment . . .
 that substantially limits . . .
 one or more major life activities
EEOC says: After ADAAA, the determination
of “disability” should not demand an
extensive analysis.
Must always be determined on an
individualized basis. So generalizations are
dangerous.
What Is A “Disability”?
 Physical or Mental Impairment
 Any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss
affecting one or more body systems, or
 Any mental or psychological disorder, such as
an intellectual disability, organic brain
syndrome, emotional or mental illness, and
specific learning disabilities.
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What Is A “Disability”?
 Substantially Limits
 The impairment need not prevent, or
significantly or severely restrict, the individual’s
performance of the major life activity.
 The analysis is in comparison with most people
in the general population.
 The term is construed broadly in favor of
expansive coverage.
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What Is A “Disability”?
 Major Life Activities: Very broad - Caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, sitting,
reaching, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking,
communicating, interacting with others, and working;
and
 The operation of any major bodily function (immune
system, special sense organs and skin, normal cell
growth, digestive, genitourinary, bowel, bladder,
neurological, brain, respiratory, circulatory,
cardiovascular, endocrine, hemic, musculoskeletal,
and reproductive functions)
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What Is A “Disability”?
 Does Duration Matter?
 EEOC: There is no specific durational requirement.
 An impairment that lasts less than 6 months can
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be a disability.
 “Impairments that last only for a short period of
time are typically not covered, although they may
be covered if they are sufficiently severe.”
 Example: An individual with back impairment that
results in a 20-pound lifting restriction that last for
several months is disabled.
 Impairments that are episodic are disabilities if they
substantially limit a major life activity when active.
What Is A “Disability”?
 The Bottom Line:
 A disability is a physical or mental condition
that
 makes it more difficult for the individual to
do something important, or
 impacts one of their major bodily functions
in comparison to the general population.
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What Is A “Disability”?
 The Bottom Line, Part 2:
 Unless you are prepared to undertake
 an extensive factual, medical and legal
analysis to determine whether a condition
is a disability, and
 significant legal risk, then
 assume that the impairment is a disability –
for accommodation and discrimination issues.
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Sure Bets
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Epilepsy
Cancer
Diabetes
HIV
Arthritis
Migraines
Multiple sclerosis
Blindness
Deafness
Cerebral palsy
Autism
Muscular dystrophy
Major depression
 Schizophrenia
 Obsessive/compulsive
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disorder
Bi-polar disorder
Asthma/COPD
Heart disease
Fibromyalgia
Chronic fatigue disorder
Attention deficit
disorder/ADHD
Narcolepsy
Irritable bowel syndrome
Severe allergies
And more
What is Not a Disability?
 Vision corrected by ordinary eyeglasses or contact
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lenses
Pregnancy (without additional impairments)
Eye color
Hair color
Left-handedness
Height
Weight – but …
Muscle tone within normal range
Poor judgment
Laziness
Quick temper – but …
Close Calls?
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Eczema
Carpal tunnel syndrome
Back pain
Stress
Post-partum depression
Broken bones
Torn muscle, ligament, cartilage
Others?
What Is a Record of a Disability?
 “Record of a Disability”
 The individual - has a history of having a “disability,” or
 has been misclassified as having a
“disability.”
 Because “disability” is broader, the “record
of” category is also broader.
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The Interactive Process
of Reasonable Accommodation
Reasonable Accommodation: The
Interactive Process
 Because “disability” is now much broader, the
“interactive process” of reasonable
accommodation is likely to be more common
and more critical.
 The interactive process starts when an
employee “requests” an accommodation.
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The Interactive Process
of Reasonable Accommodation

Initiating the Interactive Process
 The individual must initiate the process, by
requesting an accommodation.
 To request accommodation, the individual or
a representative must let the employer know
that the individual needs an adjustment or
change at work for a reason related to a
medical condition.
 The individual may use “plain English” and
need not mention the ADA or use the phrase
“reasonable accommodation.”
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The Interactive Process
of Reasonable Accommodation
 Advice for Employers:
 By policy, encourage accommodation needs to
be reported, and reported promptly.
 Specify how and to whom accommodation
requests are made.
 Train managers
 To recognize requests for accommodation
 To refer requests to the right people
 Not to make assumptions about impairments
 Not to make medical inquiries
 To deal with performance and behavior
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The Interactive Process
of Reasonable Accommodation
Examples:
 An employee tells her supervisor, "I'm having trouble
getting to work at my scheduled starting time because of
my medical treatments."
This is a request for reasonable accommodation.
 An employee tells his supervisor, "I need six weeks off to
get treatment for a back problem."
This is a request for reasonable accommodation.
 A new employee tells her supervisor that her wheelchair
cannot fit under the desk in her office.
This is a request for reasonable accommodation.
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The Interactive Process
of Reasonable Accommodation
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Steps in the Interactive Process:
Dialogue with the employee
 Identify the essential non-essential job
functions
 Identify work restrictions, or other limitations
on the ability to perform essential job
functions
 Determine whether medical information is
required
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 From
employee’s doctor
 From another doctor
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The Interactive Process
of Reasonable Accommodation
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Steps in the Interactive Process, cont.:
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Establish objective grounds for any requests for
medical information.
Explore all accommodation options that will enable
the employee to perform essential functions.
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Select an accommodation.
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Explore all accommodations suggested by employee or
employee’s doctor.
Consider other options identified by supervisor, HR, disability
manager.
Does not have to be employee’s preferred accommodation.
Get buy-in from employee, employee’s doctor.
The Interactive Process
of Reasonable Accommodation
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Document the Process
All communications with the employee and
the employee’s doctor
 The employee’s requested accommodation
and the reasons for it
 Other accommodations that were considered
 Pros and cons of all options
 Which accommodation was chosen and why
 Employee’s reaction
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Reasonable
Accommodations
Examples of reasonable accommodations
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Job restructuring
Modified work schedules
Acquiring or modifying equipment
Reassignment to a vacant position
Providing qualified readers or interpreters
Leaves of absence
What is Undue Hardship?
 EEOC: “’Undue hardship’ means significant
difficulty or expense and focuses on the
resources and circumstances of the particular
employer in relationship to the cost or difficulty of
providing a specific accommodation.”
 To qualify as an undue hardship, the requested
accommodation must be one that is either
financially impractical or "unduly extensive,
substantial, or disruptive, or those that would
fundamentally alter the nature or operation of
the business."
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Reasonable
Accommodations
 Common concerns
 Poor job performance by an employee with a
disability
 Employees requesting “light duty” work (e.g.,
lifting, standing, bending, walking, etc.
restrictions)
 Employees needing leaves of absence due to
a medical condition that might be a disability
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Leave as a Reasonable
Accommodation
 EEOC: An employee with a disability may need leave
for a number of reasons, such as:
 obtaining medical treatment, rehabilitation services, or physical
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or occupational therapy;
recuperating from an illness or an episodic manifestation of the
disability;
obtaining repairs on a wheelchair, accessible van, or prosthetic
device;
avoiding temporary adverse conditions in the work environment
(for example, an air-conditioning breakdown causing unusually
warm temperatures that could seriously harm an employee with
multiple sclerosis);
training a service animal (e.g., a guide dog); or
receiving training in the use of Braille or to learn sign language.
Red Flags for Leave Policies
 Leave policies that automatically terminate
employment without engaging in the
interactive process to determine:
 Whether there are accommodations that
would allow the employee to perform the
essential functions of the job and/or
 Whether additional leave might be a
reasonable accommodation
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Red Flags for Leave Policies
 Leave policies that require return to work
only when the employee is “100% healed”
 Leave policies that do not assess the
situation on an individual basis
 EEOC: “Modifying workplace policies,
including leave policies, is a form of
reasonable accommodation.”
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A Good Leave Policy. . .
 Is flexible
 Does not automatically terminate employment at
the end of a predetermined period
 Mandates communication with the employee
 Includes an HR evaluation of the situation prior
to termination
 Does not allow indefinite leave
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Discrimination Claims: Now They’re
About Being Regarded As Disabled
 EEOC: In most cases, an individual who
claims disability discrimination need not
show an actual disability or a record of a
disability.
 The claimant’s initial burden is met by
showing that he or she was “regarded as”
disabled.
 And the “regarded as” threshold is very
low.
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What Does It Mean to Be
Regarded As Disabled?
 An individual is “regarded as” disabled if:
 The individual is subjected to a prohibited
action because of any actual or perceived
impairment,
 Unless the impairment is “transitory and
minor.”
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What Does It Mean to Be
Regarded As Disabled?
 It does not require a showing that an
impairment substantially limits a major life
activity.
 It also does not require a record of such
an impairment.
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What does “transitory
and minor” mean?
 EEOC provides little guidance
 Determined “objectively”
 “Transitory” = Lasting or expected to last six months
or less
 “Minor” is left undefined
 Examples?
 Broken bones
 Sprains
 Other minor injuries that will heal quickly
 Allergies?
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What is a “prohibited action”?
 Examples: refusal to hire, demotion,
placement on involuntary leave,
termination, exclusion for failure to meet a
qualification standard, harassment, or the
denial of any other term, condition or
privilege of employment.
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What Does This Mean?
 An employer may not take an adverse
employment action against a qualified individual
because of –
 any impairment that will last more than 6
months, or
 any impairment that is not “minor.”
 Disability discrimination cases will no longer turn
on whether the claimant has a “disability.”
 Instead, the key issues will be:
 Was the individual qualified?
 Why was the adverse employment action
taken?
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Reminder: What Is Qualified?
 The individual must be able to perform the
essential functions of the job.
 What if job performance concerns are
caused by an impairment that is not an
actual disability?
 HINT: no reasonable accommodation
process necessary
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Why Adverse Action Was Taken
 Employers should be prepared to prove
that their intent was non-discriminatory.
 Document conduct-based or performancebased reasons for actions taken.
 Emails, comments, conversations, etc.
regarding the individual’s impairment are
admissible in evidence.
 What will they show about the employer’s
intent?
 TRAIN
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William H. Fallon
Phone: 616.831.1715
fallonw@millerjohnson.com
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www.millerjohnson.com