Amendments to Americans With Disabilities Act Signed Into Law
By: INGRID N. CULP
Also appeared in FredNEWS: Employment & Labor, September 2008
December 2008
On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (ADAAA), overturning a series of decisions by the U.S. Supreme Court under the Americans With Disabilities Act (ADA) and expanding the scope of medical conditions protected by the law. The ADAAA states that the purpose of the amendments is to “carry out the ADA’s objectives . . . by reinstating a broad scope of protection to be available under the ADA.”
Under the ADA, a person is “disabled” if he or she has (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) is regarded as having such an impairment. This definition remains the same. The ADAAA, which takes effect on January 1, 2009, provides the following clarifications:
- The definition of disability must be construed in favor of “broad coverage of individuals . . . to the maximum extent permitted” by the statute.
- Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
- Major life activities also include “operation of a major bodily function” such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
- An impairment that is “episodic or in remission” is a disability even when inactive “if it would substantially limit a major life activity when active.” Examples may include cancer, epilepsy and post-traumatic stress disorder.
- The determination of whether an impairment substantially limits a major life activity must be made without regard to the use of mitigating measures such as medication, medical equipment, low-vision devices (other than ordinary eyeglasses or contact lenses), prosthetics, hearing aids, mobility devices, oxygen equipment, assistive technology, auxiliary aids or services, learned behavior or adaptive neurological modifications, or reasonable accommodations. The use of ordinary eyeglasses and contact lenses may be considered, however, in determining whether an impairment substantially limits a major life activity.
- An individual meets the requirement of being “regarded as” disabled whether or not the actual or perceived impairment actually limits or is perceived to limit a major life activity.
- The “regarded as” prong of the definition of disability does not apply to impairments that are “transitory” (“actual or expected duration of 6 months or less”) and “minor.”
- While employers may not discriminate against an individual who is “regarded as” disabled, employers need not provide reasonable accommodation to such individuals.
- Employers may not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test or other selection criteria is shown to be job-related for the position and consistent with business necessity.
- Employees without disabilities cannot sue for “reverse discrimination” under the ADA.
The ADAAA also instructs the Equal Employment Opportunity Commission to revise its current regulations under the ADA to be consistent with the amendments, and to provide a lower standard for the definition of “substantially limits.”
Most commentators agree that the ADAAA expands the scope of the ADA and will result in increased litigation in this area. Employers can expect more employees to fall within the definition of “disabled,” which will trigger the employer’s duty to engage in the interactive process and provide reasonable accommodation more often. When claims of disability discrimination result in legal action, employers can expect more employees to be covered by the law and fewer cases to be dismissed by the court early in litigation. This outlook makes it especially important for employers to take requests for accommodation seriously and, when in a position to take adverse action against an employee with a medical condition, to have well drafted documentation of the legitimate, non-discriminatory business reason for the action.