The Americans With Disabilities Act (“ADA”) prohibits all employers with 25 or more employees from discriminating against employees and applicants on the basis of disability.
On June 25, 2008, the United States House of Representatives passed the ADA Amendments Act of 2008 by a vote of 402-17. The legislation includes several key provisions that could expand your duty to make reasonable accommodations to employees that you were not required to make before.
- The Act clarifies the definition of “disability” by defining “substantially limits” to mean materially restrict a major life activity. This is a lower threshold than the current requirement that a disability severely restrict a major life activity.
- The Act defines a “major life activity” broadly by including a non-exclusive list of major life activities, such as seeing, hearing, eating, sleeping, lifting, bending, reading, learning, concentrating, thinking, communicating, and bodily functions. Again, this is a lower threshold than is currently required under the ADA.
- The Act states that impairments which are episodic or in remission are considered disabilities if they would substantially limit a major life activity when active. This change could encompass conditions such as epilepsy and cancer within the definition of disability.
- The Act clarifies that the impairment that substantially limits one major life activity does not have to limit other major life activities to be considered a disability.
- The Act prohibits consideration of mitigating measures such as medication, prosthetics, hearing aids, and other medical supplies in determining whether an individual has a disability. More importantly, this provision does not include eyeglasses or contact lenses which can be considered in determining whether an individual has a disability.
- The Act provides coverage to people who experience discrimination based on a perception of impairment, regardless of whether the individual experiences a disability.
On August 1, 2008, a bill similar to the ADA Amendment Act was introduced to the United States Senate with only minor modifications — most notably, the Senate version eliminates the definition of “substantially limits.” A bipartisan majority of the Senate has already signed on to co-sponsor the bill. The Senate is expected to take up the bill in September following its summer recess. Given the support for the Act in both the House and Senate, it is highly likely the Act will pass. If enacted, the ADA Amendments Act would go into effect on January 1, 2009.