2008 Reforms to the ADA

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Executive summary - Employers must make their staff aware of the following significant changes in disability discrimination law, which become effective in 2009:
  1. After recent amendments, the protections provided to employees by the Americans with Disabilities Act ("ADA") are now to be construed broadly instead of narrowly.
  2. The courts' previous definition of “substantially limited in performing a major life activity” has been replaced by a much more liberal standard.
  3. An employer may not be able to consider such things as medication or ambulatory devices when determining whether someone is substantially disabled.
  4. Even if an impairment is in remission, an employee could be considered disabled under the ADA.
  5. An employee who is regarded as disabled may have a claim even though that person is not regarded as having an impairment that substantially limits a major life activity.

The ADA Amendments Act of 2008 (the "Act") was passed in September of 2008 and signed by the President. It takes effect on January 1, 2009. There are some significant amendments and implications for employers, whose staff should be aware of the changes and their implications.

The Act affirmatively states that the ADA’s protections are to be construed broadly, not narrowly. This contradicts (and overrides) a prior U.S. Supreme Court directive to strictly interpret the ADA’s terms “to create a demanding standard for qualifying as disabled.”

The Act also rejects another prior U.S. Supreme Court decision which limited the types of impairments that can be considered as substantially limiting major life activities. The ADA previously defined a “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of an individual” or “a record of having such an impairment” or “being regarded as having such an impairment.” Thus, under the ADA, even if a person had an impairment, it was not necessarily an ADA-covered disability unless it substantially limited a major life activity. The ADA did not define the term as “substantially limited” or “major life activity.” In interpreting those terms, the U.S. Supreme Court has held that in order to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts an individual from doing activities that are of central importance to most people’s daily lives.” The newly passed Act rejects those standards and states that the U.S. Supreme Court created an inappropriately high level of limitation necessary to obtain coverage under the ADA. The 2008 Act still does not provide a firm definition of “substantially limited,” but instructs that it should be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008 (which means broadly).

In addition, the 2008 Act provides a broad description of “major life activities.” In interpreting major life activities prior to the 2008 Act, many courts looked to the EEOC’s description of major life activities which included “functions such as caring for one’s self, performing manual tasks, walking, feeding, hearing, speaking, breathing, learning and working.” The 2008 Act now provides an expansive category of major life activities which include, but are not limited to, “caring for one’s self, performing manual tasks, feeding, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communication and working.” The 2008 Act also adds a provision that specifically includes as major life activities “the operation of major bodily functions, which include, without limitation, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.” These are very broad definitions which would conceptually and practically allow many more individuals to qualify as disabled under the ADA.

The 2008 Act also rejects the U.S. Supreme Court's prior decision that in determining whether an individual has an ADA qualified disability, a court could consider certain mitigating measures such as medication or ambulatory devices. The 2008 Act rejects this approach and states that “the determination of whether an impairment substantially limits a major life activity should be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, equipment ... .” However, the 2008 Act does permit consideration of the ameliorative effects of mitigating measures of ordinary eyeglasses or contact lenses.

The 2008 Act rejects an additional U.S. Supreme Court opinion finding that a person must be presently substantially limited in order to demonstrate a disability. The 2008 Act makes clear that a person can be disabled under the ADA even if the impairment is not presently substantially limiting any major life activity. The 2008 Act states that “an impairment that is episodic or in remission is a disability if it would potentially limit a major life activity when active.” Therefore, an employee in remission from cancer may still be considered disabled under the ADA.

Finally, the 2008 Act lessens the burden to obtain the ADA coverage under a “regarded as disabled” claim. Numerous court decisions have emphasized that in order to seek ADA coverage under the “regarded as” prong, a person cannot merely have been regarded as having some type of impairment, but must have been regarded as having an impairment that substantially limited a major life activity. The 2008 Act states that a “regarded as” claim can prevail if discrimination occurred “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.” Therefore, employees seeking ADA coverage will only need to show that they were perceived as being impaired and will not need to make the additional showing that the impairment was perceived as being substantially limiting to a major life activity.

After these amendments become effective in 2009, more employees will be eligible to bring ADA claims. Probably the most significant aspect of the 2008 Act for employers is the amendment to the “regarded as” prong of ADA coverage. A careless remark can serve as the basis for an EEOC charge and subsequent lawsuit on the basis that the employer wrongly believed the employee to be disabled. In the past, these claims were often dismissed because the perception did not encompass a belief that the employee was limited in performing a major life activity. Now, employers can no longer rely on dismissal of these claims - and must become more diligent and thorough in training supervisors and management to avoid commentary on, or consideration of, an employee with an alleged impairment because of a simple remark can apparently support a “regarded as” ADA claim.

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