Most long-term healthcare facility managers probably have a general familiarity with how the Americans with Disabilities Act (ADA) affects them as employers. Originally passed in 1990, the ADA prohibits private and governmental employers from discriminating against qualified individuals with disabilities, in job applications, hiring and firing, promotions, compensation, training and other aspects of employment.
Health care facilities may not realize, that recent changes greatly expand ADA coverage. These changes can be expected to have a significant impact on long term healthcare facilities, as well as employers in other sectors.
On January 1, 2009, the Americans with Disabilities Act Amendments Act took effect. In that act, Congress reacted against restrictive past interpretations of the ADA in several Supreme Court opinions and in ADA regulations promulgated by the EEOC. Although the amendments do not change the basic definition of “disability” in the ADA as an impairment that “substantially limits” one or more “major life activities,” they change how these terms will be interpreted by courts and the EEOC.
The Americans with Disabilities Act Amendments Act states that Congress intends the term “disability” to be construed expansively “in favor of broad coverage… to the maximum extent permitted.” It also requires the EEOC to revise its regulations defining when an impairment “substantially limits” a major life activity in a manner consistent with the rest of the Act, i.e., more broadly. Those revised regulations have not been issued.
The amendments expand the definition of “major life activities,” limitation of which may result in disability, by giving examples of some activities that formerly were not recognized by the EEOC, such as reading, bending and communicating. The amendments also provide that impairments of “major bodily functions” may substantially limit major life activities and qualify as disabilities. “Major bodily functions” include “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”
An impairment that is episodic or in remission is now considered to be a disability if it would substantially affect a major life activity when it was active. An individual discriminated against because of an actual or perceived disability will be regarded as disabled, unless the impairment is transitory and minor. Formerly such individuals were only regarded as disabled if their impairments were perceived by employers as substantial limitations of major life activities. Under the amendments an employer is not required to make reasonable accommodations to individuals regarded as disabled, however.
The ADA Amendments Act overturns a decision of the Supreme Court that allowed an employer to consider mitigating measures such as prosthetic devices or medications in determining whether an individual had a disability. Now the employer must determine disability without considering those measures, the sole exceptions being that the employer may consider the effect of ordinary glasses or contact lenses.
Health care is the largest industry in the U.S. Economy according to the Bureau of Labor Statistics, and it is also expected to be have the largest rate of employment growth over the next five years. In addition, in a recent year nursing care facilities’ workers suffered occupational illnesses or injuries at more than twice the average rate: 10.1 cases per 100 full-time workers, compared to an average of 5.0 for private industry overall. Musculoskeletal injuries are the most common injury among nursing aides, the largest category of health support occupations. As one of the economy’s largest employers, with significant exposures to occupational illness and injury, the long term health care industry will undoubtedly see major effects from these amendments to the ADA.
The EEOC website, https://www.eeoc.gov/, contains information which is helpful for employers in complying with the ADA, including “Questions and Answers about Health Care Workers and the Americans with Disabilities Act.” Unfortunately these website materials have not yet been revised to reflect changes that were made in the Americans with Disabilities Act Amendments Act.
In the meantime, long term healthcare facilities, like other employers, must insure that their policies and procedures are revised to comply with changes made by the ADA Amendments Act. It is important that operational personnel and human resources staff are aware of these changes in the law and prepared for the questions and situations that are likely to arise under the ADA as expanded following these amendments.
Under these new revisions it is more important than ever for employers to seek early legal advice from competent employment counsel concerning questions they may have concerning the Americans with Disabilities Act, particularly whenever a claim of discrimination based on disability is alleged.
Rodney M. Confer