Last week, President George W. Bush signed into law the ADA Amendments Act of 2008 (ADAAA; also Act). With bipartisan support, the ADAAA was introduced earlier this summer after months of negotiations involving employer groups and advocates for persons with disabilities. The amendments will become effective on January 1, 2009.
The ADAAA broadens the definition of disability under the Americans With Disabilities Act (ADA) and thus will have a significant impact on employee disability coverage and an employer's obligation to provide reasonable accommodations in the workplace. This expansion of employee rights is in keeping with the stated purpose of the legislation: to respond to U.S. Supreme Court decisions (specifically Sutton v. United Airlines (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams (2002)), which had effectively narrowed the scope of protection under the ADA.
Provisions to Note:
- Definition of Disability Expanded and Clarified - While the ADAAA does not change the definition of disability under the ADA, the amendments specifically state that it is to be construed in favor of broad coverage of individuals under the Act to the maximum extent permitted by its terms. The amendments also contemplate that the Equal Employment Opportunity Commission (EEOC) will revise its regulations to be consistent with the goals of the ADAAA.
- Expanded Definition of "Regarded As" or Perceived Disability - As you know, the ADA protects individuals who are "regarded as" being disabled. The amendments clarify that an individual may be "regarded as" having a disability by establishing that he or she was subjected to an action prohibited by the ADA "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." This change will make it easier for employees to establish a "regarded as" claim, because the individual need not demonstrate a real or perceived limitation on a major life activity. The amendments make clear, however, that the "regarded as" provision does not apply to impairments that are "transitory" (actual or expected duration of six months or less) and "minor." The amendments also clarify that employers are not required to provide accommodations to individuals who meet the definition of disability solely under the "regarded as" prong.
- Impairments That Are Inactive - Under the ADAAA, an impairment that is episodic or in remission will still constitute a disability "if it would substantially limit a major life activity when active." Thus, when an employee's impairment is in an inactive state and no major life activity is currently impacted, the employee may still be a covered disabled individual under the ADA. Employers should recognize that various chronic health conditions that have been covered by the Family and Medical Leave Act, and specifically its intermittent leave provisions, may now be considered disabilities under the ADA.
- Definition of "Major Life Activities" - Over the years, court decisions regarding the critical definition of "major life activities" have limited it to those activities that are of central importance to daily life. Under the amendments, the term "major life activities" now expressly includes activities such as standing, lifting, bending, reading and concentrating, along with performing manual tasks, thinking, working, caring for oneself, seeing, hearing, eating, sleeping, walking, speaking, grieving, learning, and communicating. The ADAAA also defines major life activities to include the operation of a "major bodily function," which includes "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." As a result of this change, a person need not show that an impairment of a major bodily function actually affects his or her activities in order to establish a disability.
- Mitigating Measures - Recent Supreme Court decisions had limited the scope of disabilities by allowing the determination of whether an impairment constitutes a disability to be made considering the impact of medication, eyeglasses and similar mitigating measures. The new amendments reverse that standard; now, the determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies and equipment, hearing aids, mobility devices or prosthetics. In other words, an employee may be disabled even if he is able to function normally with the aid of medication or other measures. The amendments do, however, distinguish between mitigating measures such as "low-vision devices" that must be disregarded in the determination of a disability, as opposed to ordinary eyeglasses or contact lenses, which still may be considered. Under the new definition, mitigating measures also include reasonable accommodations, as well as "learned behavioral or adaptive neurological modifications." The bottom line is that many employees who would not have been considered disabled under the standard established by the courts will now be eligible for protection under the ADA.
- Vision - Although the ADAAA makes it clear that the need for normal eyeglasses does not make one disabled, the amendments prohibit employers from using tests, selection criteria or employment qualification standards based on uncorrected vision unless the test or standard is "job-related for the position in question and consistent with business necessity."
- No Reverse Discrimination Claim - The new law clearly states that nothing in the ADA provides a basis for a claim for alleged discrimination because of a lack of disability.
Employer Awareness and Action
Employers will need to reconsider the standard by which they determine whether an employee is covered by the ADA, including for purposes of engaging in the interactive process regarding accommodations, and ensure that human resources professionals and managers understand the broader scope of protection under the ADA. Employers should review any written policies or procedures regarding requests for reasonable accommodation to confirm that they are consistent with the new standards set out in the ADAAA. In addition, employers should review and update their job descriptions to ensure that the essential functions of each position are accurately described and review any vision-related tests or standards to ensure that they are in compliance with the new requirements.