Articles

MARSHALL'S LAW

ADA GETS MAKE-OVER FOR 18TH BIRTHDAY

By Marshall H. Tanick

The Americans with Disabilities Act, the Federal law that prohibits discrimination in public accommodations and the workplace, recently underwent a major make-over, shortly after its 18th birthday. The law, which went into effect in August of 1990, has generally worked well for allowing the disabled access to public accommodations. But it has had a more spotty record in dealing with workplace problems for covered employees, those who work for businesses with 15, or more, employees. Smaller employers, those with fewer than 15 employees, are covered by a similar provision under the Minnesota Human Rights Act, which generally has been interpreted by the Courts to parallel the Federal law. The Courts have been fairly restrictive in addressing ADA issues raised by employees. As a result, after years of wrangling, both Houses of Congress overwhelmingly passed, and President Bush signed, new amendments to the ADA in late September. The measure represents major modifications in the law in an attempt to make it more "user-friendly" for employees. Employers and employees should be familiar with these changes, particularly because of the new rights they give to employees and the increased obligations they impose upon employers.

Here are some of the key changes in the ADA as a result of the new amendments this fall:

• The language defining what qualifies as a disability under the Act has been relaxed from a high threshold, requiring that an affliction "substantially limits a major life activity" to a less onerous, "materially restricts" standard. The loosening of this restriction will make it easier for employees to qualify for coverage under the Act.
• The term "major life activity," which must be affected to be covered by the ADA has been expanded to include "operations of a major bodily function," including neurological, circulatory, and reproductive systems.
• The perception-of-disability provision, which provides coverage for an employee who is "regarded as having a disability", has been expanded to cover individuals who are perceived to be disabled, regardless whether an actual disability exists.
• An impairment that is episodic, or in remission, may be a covered "disability" if it substantially limits a major life activity when active, compared to the former provision, which basically required that an affliction be permanent in nature.
• The law now covers those whose disability can be mitigated by medication or other corrective action, overruling previous Supreme Court rulings that disregard mitigation.
• Finally, and perhaps most importantly, the law directs courts and administrative agencies to construe the law liberally in order to afford "broad coverage" to employees.

The effects of the amendments remain to be seen. But, if followed by administrative agencies that oversee the ADA, such as the Equal Employment Opportunity Commission (EEOC), and Courts, they are likely to make the law be invoked more frequently by employees and require employers to deal with more disability-related claims in the future.

More information about the new amendments to the ADA and how they will affect individual businesses can be obtained by contacting Mansfield, Tanick & Cohen's employment law department, at (612) 339-4295.