The Americans with Disabilities Amendments Act (ADAAA):

On September 25, 2008, President Bush signed the ADA Amendments Act of 2008 (ADAAA), for an effective date of January 1, 2009. The Act updated the Americans with Disabilities Act to provide broader protections (at the federal level). The Act is intended to strengthen the original intent of the Americans with Disabilities Act by clarifying several Supreme Court decisions. This new legislation allows more American workers to qualify as disabled under the new guidelines.

There are three major changes to the current Americans with Disabilities Act. The new law:

1. Prohibits employers and courts from considering the effects of mitigating measures, with the exception of ordinary eyeglasses and contact lenses, when determining whether an employee has a disability. Not considering mitigating measures means that an employee will be evaluated without regard to hearing aids, medications, prosthetic devices and other measures they might use to manage their impairments.

2. Expands the list of major life activities in which an employee may be limited. The non-exhaustive list will now include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. For the first time, major life activities include the operation of major bodily functions, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The larger list of activities is intended to encourage the courts to interpret the ADA more broadly to ensure that employees who need the law's protections will be covered by the same statute.

3. Broadens the "regarded as" part of the statute's definition of disability. Specifically, the new act requires an individual to prove they were discriminated against because of an actual or perceived impairment, even if the impairment does not limit or is not perceived to limit a major life activity. Previously, employees were required to demonstrate that actual or perceived impairment was believed to be substantially limiting. The Act also states that employers are not required to reasonably accommodate an individual who is "regarded as" disabled.

So what does this new federal legislation mean for the small business employer in California? Not as much as you may think.

The Fair Employment and Housing Act (FEHA) in California, which applies to employers with 5 or more employees, requires that an employer provide reasonable accommodation to persons with disabilities. California law also prohibits discrimination against a person based on a medical condition. A "medical condition includes any health related to or associated with a diagnosis of cancer, or a record or history of cancer, as well as an individual's genetic characteristics". In a California Court of Appeal, it was held that the FEHA does require reasonable accommodation in a "regarded as" situation.

FEHA remains as strict as the newly amended federal ADA, and may be even stricter in some regards. However, any time there is publicity about employment laws, remember that your employees hear or read it also, and your exposure to lawsuits increases. It's important to be aware of your ADA obligations and be alert to possible ADA triggers such as:

• candidate screening: including a question on your application that asks if an applicant has a disability
  
• employee absences: frequent absences or absences for long periods of time
  
• performance issues: a sudden change in productivity or quality of work
  
• behavioral change: inability to focus, inconsistency with job tasks, inability to work with others
  
• employee termination: your employee resigns and then rescinds their resignation, or resigns for personal reasons.
  

As always, stay alert and if you need clarity or have questions contact your Human Resources representative or legal counsel.

Complying with the American Disabilities Act When Hiring - Part I

Job Applications
The American Disabilities Act (ADA) prohibits various types of questions of job applicants. Any inquiries on job applications or in interviews regarding an applicant's health or disabilities are illegal under the ADA, as well as other laws.

Prior to recruiting, the employer needs to determine the Essential Job Functions (EJF). When determining the EJFs you must ask yourself if each of the facets of the position are fundamental or integral to the job, MUST be done on a regular basis or on a rare occasion, or can this function be moved to another position without having a critical impact on this job, and the degree of expertise or skill needed to perform the function.

Skills Testing
Pre-employment tests that measure such things as sensory, manual, or speaking skills are permitted under the ADA if the skill being tested is necessary to perform the EJF's, meaning that the test is job-related, and if the tests have been validated to ensure that they measure what they purport to measure. If you are using un-validated skills tests, you are opening yourself to liability for discrimination.

The results of such tests may not be used to screen-out individuals with disabilities. Pre-employment tests should be administered with reasonable accommodations for those applicants who request accommodation.

Interviewing Don'ts
The ADA prohibits pre-employment inquiries about disabilities, whether overt, hidden, or assumed

There are certain questions that are regarded as disability-related, and therefore illegal to ask in a job interview or solicit in background and reference checks:

• About physical impairments like scars, burns, or missing limbs.
  
• If he or she has a disability, for how long, the nature or severity of it, or how it occurred.
  
• About mental or physical impairments unless the applicant has disclosed it and the discussion is limited to determining if the person can perform the EJF's, with or without reasonable accommodation.
  
• If ever been injured on the job.
  
• How many days sick last year.
  
• Been addicted, in counseling or treated for drugs or alcohol abuse.
  
• Been treated for any other disease, medical condition, or disability, or on any medications.
  
• Been in counseling or received psychiatric care, history of filing workers' compensation claims.
  
• Whether there is any health-related reason the applicant may not be able to perform the job.
  

DO NOT assume that an applicant cannot do the job because of an apparent disability.
The applicant may be able to perform the essential functions of the job with or without reasonable accommodation. See next month's Challenge or contact Bonnie Royster, SmartSource Hiring System Manager at Your People Professionals 805.928.5725 for Part II Interviewing Do’s to Comply with the ADA.