The New ADA: Hotels face new compliance challenges regarding disability-related issues and accommodation requests
By Lesley Pate Marlin Attorney, Venable LLP | June 19, 2011
Co-authored by Robert G. Ames, Esq., Partner, Venable LLP
With the enactment of the ADA Amendments Act of 2008 ("ADAAA") and the corresponding regulations recently promulgated by the Equal Employment Opportunity Commission ("EEOC"), the legal landscape under the Americans with Disabilities Act ("ADA") has changed dramatically and will continue to do so with court decisions interpreting and applying the amended law. As a result, employers face new compliance challenges and must re-examine how they address disability-related issues and accommodation requests in order to minimize the risk of enforcement actions and/or litigation.
I. Overview Of The ADA And The ADAAA
The ADA, which applies to employers with 15 or more employees, prohibits discrimination against qualified employees or applicants with a disability because of the disability and requires employers to provide reasonable accommodations to such individuals to assist them in carrying out the essential functions of their jobs unless doing so would cause an undue hardship to the operations of the employer's business. "Disability" is defined as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual; (2) a record of such impairment; or (3) being regarding as having such an impairment.
When the ADAAA took effect on January 1, 2009, it overturned a series of court decisions that had effectively narrowed the scope of the ADA by limiting the physical and mental conditions that qualified as disabilities. The ADAAA sought to ensure that individuals with disabilities are, in fact, afforded the protections allegedly intended by Congress when it originally enacted the ADA.
To that end, the ADAAA maintained the three-prong definition of "disability" but changed the analysis and interpretation of the statutory terms. Perhaps most significantly, employers can no longer consider the ameliorative effects of mitigating measures, with the exception of common eyeglasses or contact lenses, in determining whether an individual has a disability within the meaning of the statute. The ADAAA rejected the definition of "substantially limits" established by the Supreme Court and the EEOC as too strict and then directed the EEOC to issue revised regulations consistent with Congress' intent to provide broad protection for disabled employees. It expanded the definition of "major life activities" through an illustrative, non-exhaustive list of activities and major bodily functions that qualify. It clarified that an impairment that is episodic or in remission, such as epilepsy or cancer, constitutes a disability if it would substantially limit a major life activity when active.