ADA Amendments Act of 2008 (ADAAA): Employers Should Update Their Policies

You may want to read this Insight after your second cup of coffee, because the following introduction is quite a mouthful!

In case you aren’t aware, the Americans with Disabilities Act Amendments Act (ADAAA) was signed into law on Sept. 25, 2008. The ADAAA significantly amends the Americans with Disabilities Act (ADA), which affects how employers analyze ADA coverage and requests for reasonable accommodation. The ADAAA is a federal law that became effective on Jan. 1, 2009.

Employers should update their policies, if they haven’t yet done so. Employers will want to include information about how to handle accommodation requests.

And before I highlight or summarize related points of this Act in a general sense, I also want to stress: When dealing with employment issues, such as the ADAAA, employers are encouraged to consult with legal counsel in order to attain more definitive guidance.

Basically, employers must be prepared to make changes to employee policies because both Acts are complicated, and you are dealing with individuals’ disabilities. As general information, the following summarizes a few significant factors or points to the ADAAA, which has significantly expanded the ADA definitions:

1. The disability could have been caused by the individual’s own personal circumstances, or the disability could be related to a workplace injury or incident.
2. The interactive process is another factor that was involved even before the changes to the ADA took place; this means that the employer must be engaged in a dialogue with the employee, who is impaired, regarding what the employer can do so that the impaired employee can still continue to work. This dialogue must be take place in a timely manner, and it must be done in good faith. In other words, the employer must demonstrate sound intentions in order to discover and find a way to make the situation work with the employee.
3. The next point deals with reasonable accommodation. Sometimes, it involves modifying the nature of the work or sometimes it involves a physical modification to the work environment itself.
4. The focus is on the employee yet, at the same time, there are concerns that undue hardships are not placed on employers. However, this is a complex point and is restrictive, so employers should seek legal counsel because other factors come into play, such as the company’s size, net worth, available resources, etc.
5. The last point speaks to how the employer treats the employee; if the employee is treated as though he or she is disabled, then they are protected under the ADA, and, as such, they cannot be discriminated against. 

With the ADAAA, we see a renewed emphasis on the interactive process, so that reasonable accommodations can be addressed. This is why it’s very important to commit to that process, as described in number two above. 

This stipulation means that employers should not make these decisions on their own without first engaging the employee in a dialogue to find out what relates to the impairment and what can be done to modify accommodations. 

Current and up-to-date job descriptions are important.

Employers will also want to develop and maintain the proper job description, which identifies the essential duties of the position. The ADA and the ADAAA do not remove the requirement that the employee must still be able to perform the essential duties of the position with or without accommodation. So it’s critical to have the job description which identifies those essential duties. 

Two final points before closing: 

1. Employers should be careful about engaging in discussions with the employee’s physician about the injured employee. The regulations are very specific that direct supervisors cannot contact the employee’s medical provider. To avoid the possibility of violating the ADA and the ADAAA, managers must discuss appropriate steps with Human Resources (HR). 
2. Managers and supervisors should be trained so they know what the ADA and ADAAA requires in terms of the interactive process and reasonable accommodations. 

Again, be sure and check with both HR and legal counsel about any points related to these Acts. 

Additional resources about this topic: 

The ADA Amendments Act of 2008: Frequently Asked Questions 

The ADA and the ADAAA: The Changing Face of Disability Law in the Workplace

The ADAAA significantly amends the ADA, and employers must be prepared to handle requests for reasonable accommodation.