New Amendments to ADA Passed By Congress


by Steve Bogue

Bogue, A. Stevenson
sbogue@mcgrathnorth.com
(402) 341-3070

On September 17, 2008 the ADA Amendments Act of 2008 passed with so little opposition that it was approved by a voice vote.  The Act increases employees’ protections under the Americans With Disabilities Act. In the findings and statement of purposes that preceded the bill, Congress noted its belief that certain Supreme Court holdings had impermissibly narrowed the broad scope of protection intended by the ADA, thus stripping many individuals of protection Congress had intended to confer.
Specific changes in the Act include the following:

  1. For the first time, “major life activities” was defined by the statute as including, without being limited to, caring for one’s self, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.
    a. Significantly, it provided that a “major life activity” will also include the operation of a major bodily function including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. That particular change is a significant one because it does not involve an analysis of the actual impact of those functions on a person’s activities.
  2. With respect to whether an individual is “regarded as” having an impairment, the Act provided that an individual will be entitled to protection because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. The underlined portion of the previous sentence is very significant. It marks a change from the present law and provides that an impairment which does not satisfy the definition of a current, actual disability, or one perceived to limit a major life activity may still be sufficient to establish a “regarded as” disability.
    a. The Act, however, provided that “regarded as” claims will not include impairments that are transitory and minor. A “transitory impairment” is defined as an impairment with an actual or expected duration of six months or less.  It is not clear what will constitute a “minor” impairment.
    b. The Act clarified that an employer need not provide a reasonable accommodation to a person who is “regarded as” being disabled but does not have an actual disability or a record of such an impairment.
  3. The definition of “disability” in the ADA is to be construed in favor of broad coverage of individuals, to the maximum extent permitted by the terms of the Act.
  4. An impairment that substantially limits one major life activity need not also limit other major life activities in order to be construed as a disability.
  5. An impairment that is episodic or in remission is defined as a disability, even if it does not impact the present functioning of the employee, if it would substantially limit a major life activity when active.
  6. The determination of whether an impairment “substantially limits” a major life activity must be made without regard to the effects of such mitigating measures as medication, medical supplies, equipment, prosthetics, hearing aids, cochlear implants or other implantable hearing devices, mobility devices or oxygen therapy equipment and supplies or the use of other assistive technology, reasonable accommodations or auxiliary aids or learned behavior or adaptive neurological modifications.
    a. However, the beneficial effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.
  7. Vision tests based on an individual’s uncorrected vision are precluded unless such test is shown to be job-related for the position in question and consistent with business necessity.
  8. There is no cause of action for alleged “reverse discrimination” based upon a person’s lack of a disability.

Congress also noted its expectation that the EEOC will revise its definition of the term “substantially limits” to be consistent with the goals of the amendments.

Obviously, the amendments to the ADA are not employer friendly. They are specifically intended to broaden the coverage of the ADA. Because of that fact and the accompanying publicity, it should be anticipated that the number of discrimination charges and the amount of litigation involving disability discrimination will increase.

The ADA Amendments Act, when signed by the President, will become effective on January 1, 2009. In the meantime, employers should familiarize themselves with the new definitions so they will be able to evaluate whether a particular employee or applicant might be “regarded as” being disabled under the new definitions or whether they might be considered “disabled” and, as a result, what sort of “reasonable accommodation” should be considered. Employers should also review their personnel policies to determine their consistency with the provisions of the ADA as amended.

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