Legal Briefs
Author: Barran Liebman Electronic Alert, Volume 11, Issue 24, reprinted with permission
Posted: January 1, 2009
Words of Wisdom

America's Heroes at Work

Washington, D.C. recently unveiled a new web-based resource for employers and others who employ veterans and first responders with a traumatic brain injury (TBI) and/or post-traumatic stress disorder (PTSD). Visit America’s Heroes at Work to find fact sheets, reference guides, training tools, and more


Senate Passes Amendment to Americans with Disabilities Act (ADA) and Returns Bill to House of Representatives for Consideration

Author: Barran Liebman Electronic Alert, Volume 11, Issue 24, reprinted with permission

On September 11, 2008, the U.S. Senate passed a bill containing its proposed amendments to the Americans with Disabilities Act (ADA) and returned the bill to the U.S. House of Representatives for its consideration, setting the stage for a dramatic rewrite of the landmark disability legislation.

The ADA prohibits covered employers from discriminating on the basis of disability and requires that they make reasonable accommodations for disabled employees. To be classified as "disabled" under the ADA, the employee must show that a disease or condition "substantially limits a major life activity."

The Senate bill proposes several important changes to the ADA. Under current U.S. Supreme Court interpretation, courts must consider the impact of mitigating measures like medication and medical equipment when determining whether an impairment affects a major life activity. Disability advocates maintain that this interpretation presents employees with an untenable choice between treating their disability and protecting themselves from discrimination. The Senate proposal prohibits courts from considering medications, hearing aids, prosthetic devices, oxygen tanks and other forms of medical equipment or treatment, but would not make any changes to the right of an employer to consider the mitigating effects of ordinary eyeglasses or contact lenses.

The Senate bill also addresses the U.S. Supreme Court's interpretation of the ADA's "substantially limits" standard. In 2002, the Court ruled that the term required that a disease or condition prevent or severely restrict a major life activity before an employee could be deemed disabled. The Senate proposal would replace this with a less restrictive standard allowing the employee to show that he or she was "materially limited."

The House overwhelmingly passed its own ADA-amendment bill in June. Although the Senate made minor modifications to the House bill, the two are substantially similar, and Washington insiders expect that the Senate bill will sail through a House vote and, ultimately, be signed by the president to become law.

(See the next article regarding passage of this amendment)


Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. Copyright © 2008 by Barran Liebman LLP

EEOC Issues Notice Concerning ADA Amendments Effective January 1, 2009

According to the Equal Employment Opportunity Commission (EEOC) on September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

  • directs EEOC to revise that portion of its regulations defining the term "substantially limits"
  • expands the definition of "major life activities" by including two non-exhaustive lists:
    • the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating)
    • the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions")
  • states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability
  • clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor
  • provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation; and emphasizes that the definition of "disability" should be interpreted broadly
  • EEOC will be evaluating the impact of these changes on its enforcement guidances and other publications addressing the ADA.

Do Unexcused Absences Constitute ADA Accommodation

According to a recent article published by the firm of Dickie, McCamey & Chilcote out of Pittsburgh, Pennsylvania, attorney Maria Greco Danaher, published news that the 8th U.S. Circuit Court of Appeals upheld a claim dismissed under the Americans with Disabilities Act in the case Rask v. Fresenius Medical Care North America.

The court held that “an employee’s request for unexcused absences on short notice was not a request for a reasonable accommodation under the Americans with Disabilities Act (ADA) and that the worker was not a qualified individual under the law.”

The Rask case had many complexities including that a prior accommodation had already been made for the employee to work two days a week. The case was decided on a request to expand the accommodation to include additional, “unanticipated days off on short notice.” According to Danaher, “The court found that while the law requires an employer to make an adjustment or modification that will assist the employee in performing the duties of a particular job, it does not require such action if the purpose of the requested adjustment or modification is to assist the individual in her daily activities on and off the job.” Although, for this case the decision was that taking sudden, unscheduled absences would have been for the employee’s “personal benefit” and “would not have assisted Rask in performing the duties of her particular job,” Danaher provided cautionary language to employers to carefully assess the relationship of this case to any specific employee situation before drawing any conclusion regarding the reasonableness of accommodation requests.

At PSU, the Affirmative Action Office assists managers, administrators, and staff in determining an employees eligibility under the ADA and if so, whether an accommodation requested by an employee is reasonable under the law. Contact Burt Christopherson, Director of Affirmative Action/Employment Opportunity for guidance on this topic.