LawyersUSA

The law, if passed, will likely cause a rise in requests for workplace accommodations as well as an increase in associated costs. It could also lead to a spike in charges of discrimination and lawsuits as workers, employers, employment lawyers and judges wrestle with what constitutes a disability.

The effects of the new legislation will be felt quickly because it is slated to go into effect Jan. 1, 2009.

"If the number of people that are covered by the Act rises, then the number of people that are going to be seeking some type of accommodation will likewise rise," said Mark W. Peters, a partner at the Nashville office of Waller Lansden Dortch & Davis, where he represents employers.

"When that happens, costs will rise, and so will [the number of] conflicts, in the form of charges and lawsuits," he added.

The bill, the ADA Amendments Act of 2008, H.R. 3195, has already been passed by the House by a veto-proof margin of 402-17.

Senate lawmakers are set to move on their version of the bill, which differs slightly, this month. That measure, S. 3406, boasts 63 co-sponsors and is also expected to pass with a veto-proof margin.

Sen. Tom Harkin, D-Iowa, a co-sponsor of the Senate measure, said lawmakers plan to get the bill passed before the end of the session, in an effort to overturn recent U.S. Supreme Court decisions he said impede the ability of disabled workers who rely on medication or devices to avail themselves of the ADA's protections.

The current law, he said in a statement, "creates a bizarre catch-22 where people with serious conditions like epilepsy or diabetes can be forced to choose between treating their conditions and forfeiting their protections under the ADA, or not treating their conditions and being protected."

The White House voiced serious reservation about an earlier version of the legislation called the ADA Restoration Act, which would have eliminated the requirement that a disability affect a major life activity. But a recent White House statement praised the new version of the bill, stating that while concerns about over-breadth of coverage still exist, "the Administration supports legislation that improves the ADA and recognizes that H.R. 3195 represents a significant effort towards that end."

Caselaw overturned

Currently the ADA protects people with disabilities – defined as a physical or mental impairment that "substantially limits" one of more major life activities – from discrimination, and requires employers to make reasonable accommodations for the disability.

The new legislation would overturn three 1999 decisions from the Supreme Court: Sutton v. United Air Lines, 527 U.S. 471, Murphy v. UPS, 527 U.S. 516, and Albertson's, Inc v. Kirkingburg, 527 U.S. 555.

These cases held that the determination of whether an individual has a "substantial impairment" must be made while taking into account the use of any medications, corrective lenses, hearing aids or other corrective measures.

The new law would also overturn the 2002 case of Toyota v. Williams, 534 U.S. 184, in which the Court construed 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 defines "substantially limits" to mean "materially restricts," lowering the burden for proving the existence of a disability.

The Senate version does not contain the "materially restricts" language, but it too would overturn Williams.

Randall Johnson, vice president of Labor, Immigration and Employee Benefits for the U.S. Chamber of Commerce, who led negotiations over the legislation for the past six months, said the new bill offers a more of a compromise for businesses than the original incarnation.

"There is going to be greater coverage in terms of who is 'disabled'" under the new law, Johnson told Lawyers USA. "And employers will accept that and move quickly to [the issue of] whether the employee is qualified with a reasonable accommodation or not. I think it will be a more interactive process for the employer and the person claiming the disability to say: 'here is the situation, what can we reasonably do to accommodate the disability so you can do your job?'"

If the "materially restricts" language survives in the final version of the law, there will likely be a years-long battle in the courts over exactly what it means.

"I think there will be total disarray in terms of what the term 'materially restricts' means," said Peters. "It doesn't have any better definition than 'substantially limits' had" when the ADA was originally enacted.

After the ADA became law in 1990, a wave of discrimination charges and suits followed. The new provision will likely have the same effect, Peters said.

"In the 1990s ADA litigation was hot," he said. "People were trying to figure out what constituted having a disability. I think you will see a definite uptick in the number of discrimination charges and lawsuits."

David K. Fram, director of ADA & EEO Services for the National Employment Law Institute, a nonprofit employment law policy organization, said the new law will allow courts to shift their focus to areas of ADA law that have yet to be fully developed, since most of the current case law hinges on the issue of what qualifies as a disability.

"Disability rights groups are truly thrilled about this legislation because it will change the focus of the analysis from what is a disability to other parts of the statute: whether a person is qualified, and whether that person needs an accommodation," Fram said. "Hopefully, after we get through this first wave of litigation, we will see much more focus on the issue of whether the person can do the job he or she wants."

Because the law – if passed – will go into effect in only a few months, employers must start preparing now.

"Employers need to reexamine their policies concerning what happens when someone comes in and says 'I need some accommodations,'" Fram said. "Any employer who has been operating under the current ADA standards could get themselves in a lot of trouble if they don't make changes and the bill passes."

Christy L.E. Hubbard, a partner in the Phoenix office of Lewis and Roca, said employers who have diligently followed the ADA will not need 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."

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com