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It still is too soon to clearly evaluate the effect of the ADA Amendments Act of 2008, the law intended to counteract U.S. Supreme Court decisions that, its supporters say, too narrowly defined disabilities under the Americans with Disabilities Act.
Meanwhile, more than 18 months since its January 2009 enactment, employers still are awaiting regulations to guide them in complying with the law. No timetable has been set for the rules, said a spokeswoman for the U.S. Equal Employment Opportunity Commission.
The number of charges filed with the EEOC under the ADA for fiscal year 2009, which ended Sept. 30, increased 10.3%, to 21,451, compared with the previous year, but the economy may have played a role in that increase.
Under the ADA Amendments Act, the use of mitigating devices such as prosthetics or medicines cannot be considered when determining whether an individual is entitled to ADA protection. The law also expanded ADA protection to individuals with episodic impairments or conditions that are in remission if the impairment, while in its active state, would substantially limit a major life activity (BI, Oct. 2008).
Jonathan T. Hyman, a partner with law firm Kohrman Jackson & Krantz P.L.L. in Cleveland, said the ADA Amendments Act “has taken the focus in ADA litigation away from whether or not the employees are disabled to whether or not, No. 1, employers have taken action against employees because of that disability and, No. 2, whether employees have been properly accommodated,” he said.
Many observers say they have not seen a big increase in litigation, at least so far.
“I don't believe it's led to the tsunami of litigation people were concerned about,” said Lawrence Z. Lorber, a partner with law firm Proskauer Rose L.L.P. in Washington.