After a series of U.S. Supreme Court rulings that tightened the definitions of “disabled” in the workplace, the U.S. Senate fired back with a law that expanded the definitions — and expanded the potential for employee lawsuits. 

The proposal is called the ADA Amendments Act. It was passed by the U.S. House earlier this year, by a vote of 402-17, and all indications are that President Bush will sign it into law, effective Jan. 1, especially since the bill sailed through the Senate with a voice vote and no dissent.

Here are the main changes to existing law and court rulings:

• The Supreme Court had ruled that so-called “mitigating measures” used by a disabled employee — such as medications or prosthetics — would take the employee out of the official category of “disabled.” In other words, the employer would not have to make disability accommodations for that employee. The new law changes all that. Employers will have to make accommodations and treat as disabled any applicant or employee who qualifies as such, without regard to mitigating measures.
• The original Americans with Disabilites Act and the Supreme Court defined limitations on a narrow list of “major life activities” that could qualify someone as “disabled” for the purposes of employment.  The range of major life activities listed in the act take in: performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

The text of the bill goes so far as to cite the court decisions the new law is designed to overrule.

Specifically, the new legislation will overturn three 1999 High Court decisions: Sutton v. United Air Lines, Murphy v. UPS and Albertson’s, Inc., v. Kirkingburg.

Those are the cases where the court ruled that the determination of whether an individual has a “substantial impairment” must be made while taking into account the use of any medications, eyeglasses, hearing aids or other corrective measures.

The new law also addresses the 2002 case of Toyota v. Williams, in which the Court defined the term “substantially limits” to mean “considerable” or “to a large degree,” precluding impairments that interfere in only a minor way with performing tasks from coverage under the ADA.

The House version of the bill defined “substantially limits” to mean “materially restricts,” lowering the burden for proving the existence of a disability. The Senate version doesn’t contain the “materially restricts” language, but it too would overturn Williams. The definition of a “limitation” is the area that most legal experts see as ripe for lawsuits, especially if companies play hardball with employees who complain about what they perceive as a disability.

What now?
Several legal experts say employers can improve their chances of escaping lawsuits by taking a reasonable approach.

For instance, in an interview with Lawyers Weekly, Christy Hubbard, a partner in the Phoenix office of Lewis and Roca, said employers who have followed the ADA won’t have to overhaul their policies, but simply retune them and “retrain their managers to think more broadly in terms of what a disability may be.”

Employers also need to take action to avoid workplace tensions that can develop when some workers are given accommodations while others aren’t. “It is human nature to distrust things we have not ourselves experienced, and so a person who has never had severe back trouble, such as sciatica, may believe the person is ‘faking it’ or is just lazy,” Hubbard said. “To prevent harassment and retaliation … companies need to identify these types of issues early on. It is not in anyone’s best interest to let the lack of a $50 chair or some overzealous bravado cause a million-dollar lawsuit.”

The “association” provision of the Americans with Disabilities Act is one of those rules the EEOC slipped in under the radar – until employees started suing over it.

At this point, most people understand the ADA well enough to know what constitutes discrimination against disabled employees and applicants, and most employers closely guard against violations.

Problem is, when you poke your finger in one hole in the ADA dike, another pops open. This time, it’s the association provision.

In summary, it’s intended to prevent employers from taking adverse actions against an applicant or employee based upon stereotypes and assumptions about people who associate with others who have disabilities.

For instance, it’s unlawful for an employer to refuse to hire an individual associated with someone with a disability based upon the assumption that the individual will be out of work frequently to care for the person with the disability. Note: Unlike the rules of FMLA, the ADA doesn’t require a family relationship for an applicant or employee to claim protection under the association provision.

Probably the best way to understand how to comply with the association provision is to run down the list of major violations and examples from court cases:

• Refusing to hire the best qualified applicant based on the belief that the applicant’s need to care for a disabled individual, such as spouse or child, will have a negative impact on the applicant’s work attendance and performance. In an interview, for instance, an applicant might bring up the disability of a family member. If that happens, move on immediately to the next question or discussion.
• Denying an employee an opportunity for promotion or advancement based on the assumption that the employee will be stricken by the same disease as a family member and therefore, will become unreliable at work. Some illnesses are hereditary or present a higher-than-average likelihood that they’ll be passed from one generation to another. Such a possibility cannot be the basis for workplace decisions.
• Denying healthcare coverage to an employee’s disabled dependent because it will lead to increased health insurance premiums when that coverage is provided to other employees’ dependents. There’s no gray area here; you can’t do it.
• Denying an employee other benefits and privileges of employment that are available to other employees based upon their association with a person with a disability. For example, if you allow employees to bring their children into work on special occasions (such as when child care is unavailable), you cannot place limits or special rules on employees who have disabled children they bring into work.
• Failing to address a complaint of a violation of the association provision. Complaints about association violations fall under harassment, and failing to address them quickly and properly will leave an employer open to the same liability as if the employer failed to address any harassment complaint.
• Refusing time off to care for an associated disabled person when company policy allows others time off for family-care reasons. For example, an employer can’t allow one employee to take a leave of absence for a certain personal or family reason, but deny another employee from taking a leave of absence to care for a disabled individual under similar circumstances.

For more examples on violations of the association provision, go to: http://www.eeoc.gov/facts/association_ada.html