One of the more interesting discussions I have read of the effect on employers of the relatively new ADA Amendments is in an article dated April 2, 2012 by Michael Maslanka in the Texas Lawyer. Maslanka describes some important things for employers to think about.
He claims that courts will interpret conditions as disabilities that may not appear to be disabilities. “Sleep apnea? Covered. Attention deficit disorder? Covered. Enlarged prostate? Covered.”
Plaintiffs will likely file summary judgment motions on the issue of whether the plaintiff is disabled, and may frequently win these, where before they were virtually unheard of.
As to an employer’s obligation to “reasonably accommodate” an employee with a disability, “The more new disabilities the ADAAA pumps out, the more employers must engage in the interactive process of developing reasonable accommodation. Failing to engage in the process or taking steps to pre-empt it by firing the employee are discrete violations of the law.”
And most significant to me is his observation that the ADA now effectively expands the FMLA. There is no FMLA coverage, for example, for an employee without sick leave days who needs periodic time off for fertility treatments because "infertility is not a serious health condition triggering FMLA coverage. Plus, if the employer has less than 50 employees, there is no FMLA coverage, anyway. So, the company’s off the hook, right? Not so fast. The employee is entitled to leave as a reasonable accommodation because of a substantial limitation to the major life activity of reproduction."
Employers need to prep carefully when it comes to disability issues, which Maslanka correctly calls a "litigation-generating engine."