Question: I’m confused by the recently released “final” ADA Amendment Act of 2008 (ADAAA). I thought that rule was final in 2008. What’s this all about? -- Kelly, Michigan
Answer: Great question. The short answer is that the federal government is reinstating rights lost via court decisions that narrowed the definition of disability in unexpected ways.
In the 26 years since the Americans with Disabilities Act was passed, employers have successfully challenged the law’s definition of what constitutes a disability. As a result, the responsibility for proving a job should be open to and/or accessible fell on the person seeking the opportunity or accommodation.
That’s not what the law intended. Its goal was to make it harder for current and potential employers to deny opportunity.
To reverse the trend, the Justice Department enacted ADAAA in September 2008. When the amendment went into effect on Jan. 1, 2009, it addressed Title I: private and public employers with more than 15 people.
The rule published Aug. 11, 2016, in the Federal Register https://www.gpo.gov/fdsys/pkg/FR-2016-08-11/pdf/2016-17417.pdf applies the standard to Title II/Part 35 (state and local government services) and Title III/Part 36 (public and private facilities). It takes effect Oct. 11, 2016.
The following is from the rule summary: Congress intended that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their statutory obligations not to discriminate based on disability.
In response to U.S. Supreme Court decisions that significantly narrowed application of disability, Congress enacted the amendment to restore the understanding that the definition shall be broadly construed and applied without extensive analysis.
The Justice Department is issuing this final rule to incorporate the statutory changes set forth in the amendment into Title II and Title III.
The rule isn’t very long. Almost half of its 39 pages is devoted to comments and responses. The rule itself is the last 20 pages (53223 through 53243).
The summaries and background in the first five pages are well worth reading and include an overview of the amendment.
All too often, both government and private entities fail to accept requests for reasonable accommodation by deciding the disability in question isn’t severe enough to warrant the accommodation. Also they do not plan their policies and procedures in advance to be ready to provide reasonable accommodations. I strongly recommend a change in attitude and preparation.
Read the regulation. Also, have it ready to retrieve so you can use it to defend your actions when providing an accommodation that’s criticized by others.