“To restore the intent and protections” of the Americans with Disabilities Act (the ADA) that it believed had been eroded by the Supreme Court, Congress just passed sweeping amendments to the ADA that broaden the reach of the ADA’s protections. In yesterday’s press release, the White House stated that President Bush will sign the amendments (known as the ADA Amendments Act of 2008 (the ADAAA)) into law soon. Once signed, the ADAAA will become effective on January 1, 2009.

“Disability” Prior to the ADAAA

Under the ADA, a “disability” is any “physical or mental impairment that substantially limits one or more . . . major life activities,” but just what constitutes a disability has been debated and litigated since the ADA’s enactment. The ADAAA takes aim at two Supreme Court cases that, according to Congress, improperly “narrowed the broad scope of protection” the ADA provided.

In the first, Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme Court interpreted the ADA to require consideration of corrective and mitigating measures – such as medications – when determining whether a person has a covered disability. In the second, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court ruled that in order to be a disability, an impairment must “prevent” or “severely restrict” activities that are of “central importance to most people's daily lives.” As a result, persons suffering from epilepsy, for example, arguably did not have a disability if medication sufficiently alleviated the impact of the impairment. Similarly, people with certain cancers were often outside the scope of the ADA because of the “limited” impact on major life activities.

The ADAAA’s Changes

Congress found that the Supreme Court, and the lower courts following it, gutted the ADA of important protections. As a result, the ADAAA rejects the interpretations of “disability” in Sutton, Toyota, and scores of lower court cases following them. With the ADAAA, the determination of whether an impairment is a disability shall be made without regard to the ameliorating effects of corrective measures such as medications, medical supplies or equipment, prosthetics, hearing aids, assistive technology, or auxiliary aids or services. And narrow interpretations of “substantially limits” – e.g., that an impairment is a disability only if it “prevents,” “severely restricts” or “significantly restricts” a major life activity – have been rejected. Although the ADAAA does not provide its own definition of “substantially limits,” it nonetheless makes clear that the ADA’s definition of “disability” must be interpreted in favor of broad coverage of individuals under the ADA.

Being "regarded as" having a disability also triggers ADA protections. In another change, the ADAAA defines that phrase (it was not defined in the ADA) and broadens the reach of the statute's protections for these individuals too. Under the ADAAA, an individual can establish a "regarded as" claim if a failure to hire or other adverse employment action occurs to him or her "because of an actual or perceived physical or mental impairment." Unlike earlier regulations, the ADAAA states the employee is not required to show additionally that the employer thought that the impairment affected a major life activity or that it actually did so. In a provision that might be helpful to employers, the ADAAA states that a person cannot be "regarded as" disabled if the perceived impairment is minor or transitory, with an actual or expected duration of six months or less. Also, reasonable accommodation protection does not apply to persons covered by the ADA solely under the "regarded as" prong of the law.

The ADAAA amends the ADA in several other respects. First, it states that an impairment need only substantially limit one major life activity to qualify as a disability, and not just those of “central” or primary importance to individuals’ lives. Second, the ADAAA provides that an individual might have a disability under the ADA even if his or her impairment limits a major life activity only episodically or is in remission. And third, the amendment for the first time sets out an illustrative list of what constitutes a major life activity, specifically including major bodily functions like the cellular, neurological, reproductive, and immune systems. Previously, examples of major life activities, found not in the statute itself but in regulations implementing the ADA, were far fewer than those in the amendment and did not include major bodily functions. As a result, for example, persons with cancer who might not previously have been considered disabled because of the limited impact of their particular cancer, will now be considered disabled.

Although it broadens the scope of who may be disabled, the ADAAA does not change an employer’s obligations once an employee satisfies the definition of disability. For example, the ADAAA does not alter the law relating to what is required as a “reasonable accommodation” or what types of conduct constitute unlawful discrimination.

Possible Consequences of the ADAAA and How Employers Should Adjust

Once the ADAAA becomes law, the landscape of disability-related employment litigation will likely change. Employers will likely have less ability to prevail in lawsuits on the grounds that the plaintiff is not disabled in the first place. Such a result would be consistent with Congress’ intent in passing the amendment -- to shift the focus away from the question of whether an individual is disabled to the issue of whether the employer has complied with its obligations to not discriminate against persons with disabilities and to accommodate disabilities where appropriate.

Most significantly, in making personnel decisions concerning employees who may be disabled and considering requests for accommodations, employers should understand that a much broader group of employees will be considered disabled and entitled to protections than existed previously. As a result of the amendment, employers will need to exercise even greater care when making decisions affecting applicants and employees with physical or mental conditions. Given that Congress, by rejecting Sutton and Toyota, has unsettled a previously-established body of law, an employer’s task will be all the more difficult until the courts can interpret the ADAAA – which likely is to take years.

As they get ready for the ADAAA’s anticipated January 1, 2009 effective date, employers should take the following actions: 

  • Review your organization’s policies with respect to persons with disabilities, as well as any procedures or guidelines used to evaluate requests for reasonable accommodations. 
  • Develop new training for supervisors and Human Resources personnel regarding who is covered under the ADA and how this amendment broadens the scope of coverage. 
  • When evaluating requests for reasonable accommodation and making personnel decisions, be mindful of how the definition of disability has been broadened. 
  • Consult with experienced in-house or outside counsel before taking any adverse action against an employee who has a physical or emotional impairment that may now qualify as a covered disability