Consider Resuming Reasonable Accommodation Interactive
Process with Persons now Potentially “Disabled” under the
ADA Amendments

By Ted Olsen

As you know from past newsletters, the definition of "disability" in the Americans with Disabilities Act significantly changed on January 1, 2009.  The ADA Amendments Act of 2008 will dramatically increase the number of people who are "disabled," and therefore protected by the ADA.  For example, many workers' compensation claimants who did not previously fit within the definition of "disabled" are now covered by the ADA.

Although the amendments are not retroactive, employers should not assume that they may rely on the responses they gave to employees' past requests for reasonable accommodation.  Under the amendments, even though a person asked for an accommodation for a health problem before January 1, 2009, and the request was denied because the person was not disabled, the employer must now consider the request if the person renews it.  Denial of a person's renewed accommodation request is a new violation of the law.  Tobin v. Liberty Mutual Insurance Co., Nos. 07-1764, 07-1765 (1st Cir. Jan. 28, 2009).  An employee's renewed request for an accommodation (even the very same accommodation request he or she made earlier) must be considered under the amended law.

Therefore, an accommodation request rejected by an employer on December 31, 2008, or even December 31, 1998, can be renewed by a disabled employee today, and when rejected, will result in a new unlawful act.

Employers should give serious consideration to taking the initiative with applicants and employees whose accommodation requests were denied in the last few months of 2008 because they were not considered disabled.  If such applicants and employees are disabled under the new standards, it may be wise to initiate the interactive process.  

Among other things, the Amendments provide that, when assessing whether a person's physical or mental condition is a disability - whether the condition substantially impairs a person's major life activities - a court should not consider the effects of available mitigating measures, such as therapy, medication, surgery, assistive technology, treatments, prosthetic devices, oxygen, accommodations, or behavioral modifications (with the sole exception of eyeglasses and contact lenses). 

Also, under the Amendments, an individual is now disabled if he or she is substantially impaired in any one major life activity, despite the individual's ability to perform fully all other major life activities.  Further, the Amendments added to the list of recognized major life activities, and perhaps most importantly, define "major life activity" to include the operation of major bodily functions.  Also, the Amendments now declare that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity if it were active.

An employer has the legal duty under the ADA to make reasonable accommodation for a disabled person, unless it poses an undue hardship for the employer.  This duty to make reasonable accommodation includes the duty to engage in an "interactive process" with a disabled person about whether, and if so, what, accommodations would allow the person to perform the essential functions of the job, would be least expensive, and would not interfere with the work and rights of others.

Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

© 2009 Sherman & Howard L.L.C.                                                February 6, 2009