Wednesday, October 15, 2008

83A? AD3A? ADTripleA? What in the world?

Many of you would argue that your lawyer's favorite soup is alphabet, because that's the only way we know to reference laws. FMLA. ADA. FLSA. USERRA. NDAA. BINGO. (Just kidding.)

By now, you've either read or heard about GINA. It appeared that GINA was going to be the biggest piece of legislation to impact employers this year. Not quite.

On September 25, 2008, President Bush signed the Americans with Disabilities Act Amendments Act, or the ADAAA. As you can see, this acronym doesn't exactly roll off the tongue. My struggle thus far, aside from the substantive aspects of the Act, is figuring out how to reference it in my speeches and presentations. I'm still working on that.

But that is not of concern to you, as you have enough to handle with the substantive impact of the ADAAA. If you haven't heard about it, please don't consider this to be the sole source of your information. Google would probably refuse to give us enough space here to write about the ins-and-outs of the Act, much less how to address its impact on you. That said, here is a quick primer on the ADAAA:

1. It directs that the definition of "disability" should be broadly construed.
2. It no longer allows you to consider mitigating measures, such as medications, hearing aids, prosthetics, etc. that might be effectively addressing the impairment. The exception to this is that contacts and glasses may be considered when an employee's vision is impaired.
3. It provides 2 non-exhaustive lists of "major life activities" to be evaluated in the "substantially limits" context. The list includes activities such as thinking, concentrating, walking, eating and working. Unfortunately, the lists are not given in any context themselves, so it remains to be seen whether someone is substantially limited in, say, working, if they are unable to perform only one specific type of job, instead of working in general.

In the legislative history of the Act, Congress is reported as saying, "The question of whether an individual's impairment is a disability under the ADA should not require an extensive analysis."

Quizzically, the same Congress who passed GINA passed the ADAAA. Why is that puzzling? Well, consider what GINA addresses. It addresses the strides made in the medical field to identify genes and their impact on certain diseases, conditions, and likelihood of developing conditions in our lifetime. The ADAAA, by eliminating from consideration mitigation measures, such as transplants, drug research and bio-mechanical developments, refuses to acknowledge those strides in the medical field.

ADAAA becomes effective January 1, 2009, although the Equal Employment Opportunity Commission is unsure it will have published regulations addressing "substantially limits" before the turn of the year. Thus, you should be making appropriate adjustments to your policies and conducting training with your managers, supervisors, and HR specialists to best position your company to handle the changes that await.

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