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President Signs Into Law Significant Amendments to the Americans with Disabilities Act

October 6, 2008

On September 25, 2008, President Bush signed into law the Americans with Disabilities Act Amendments Act (the “ADAAA”), which will significantly broaden the scope of the Americans With Disabilities Act (the “ADA”).  The amendments will take effect on January 1, 2009.

The ADA, enacted in 1990, prohibits discrimination in employment against individuals with a disability, defined as a physical or mental impairment that substantially limits a major life activity.   The ADA also makes it unlawful for an employer to discriminate against a non-disabled individual who the employer “regards as” disabled.  In recent years, disability rights advocates have become concerned over decisions issued by the U.S. Supreme Court and lower federal courts that they perceive as narrowing the scope of the ADA.  The new legislation specifically targets two of these Supreme Court decisions — the 1999 decision in Sutton v. United Airlines Inc., which limited the ADA's protection for employees and job applicants whose disabilities could be "mitigated" by measures such as medication, treatment, or assistive devices, and the 2002 decision in Toyota Motor Manufacturing, Ky, Inc. v. Williams, which raised the standard individuals would have to meet to be considered "substantially limited" by their impairments.

The new legislation addresses the narrowed scope of the ADA resulting from these and other decisions in a number of ways: (1) it expands the definition of “major life activity”; (2) it declares that the effects of “mitigating measures” (such as medication or prosthetic devices) are not to be considered when determining whether an individual has an ADA-protected disability; and (3) it expands the protection of individuals who are “regarded as” disabled.

 ‘Substantially Limits’

As noted previously, a disability is defined in the ADA as “a physical or mental impairment” that “substantially limits” a “major life activity.”  In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Court ruled against a worker who claimed that carpal tunnel syndrome was a covered disability because it prevented her from working on an assembly line.  The Court said that the ADA is “to be interpreted strictly to create a demanding standard for qualifying as disabled” and ruled that “a person must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.”  The Court also observed that the impairment must be “permanent or long term.”  According to this standard, the plaintiff’s carpal tunnel syndrome, which only prevented her from working on a particular job, did not constitute an ADA-protected disability.

The new law provides that the definition of disability must be construed in a manner which will accord “broad coverage of individuals . . . to the maximum extent permitted” by the statute.  Additionally, the law provides that an impairment that substantially limits one major life activity can constitute a disability even if it does not limit other major life activities, and that an impairment that is “episodic” or “in remission” constitutes a disability even if it substantially limits a major life activity only at certain times.  This can potentially include conditions such as epilepsy, diabetes, heart disease, or cancer, which can be dormant for a significant period of time and then become active, causing symptoms which then limit or restrict the performance of a major life activity.

Impairments Evaluated in Unmitigated State

In Sutton v. United Air Lines, 527 U.S. 471 (1999), the Court ruled that mitigating measures must be considered in determining whether a person suffers from an ADA-covered disability.  For example, if the effect of a person’s disability was largely eliminated through the use of medication or a prosthetic device, he or she may not have been considered disabled within the meaning of the ADA.

Again here, the ADAAA overturns a Supreme Court precedent.  The new law provides that the determination whether an impairment substantially limits a major life activity shall be made without reference to the ameliorative effects of mitigating measures such as prosthetics, medication, and other assistive devices.  This means that impairments must be evaluated in their unmitigated state in order to determine whether an affected individual is substantially limited in performing a major life activity.  However, as an exception to this new rule, the law provides that the correction provided by ordinary eyeglasses and contact lenses may be considered in determining whether a person’s impairment substantially limits him or her from performing a major life activity.

Major Life Activities

The legislation adds several new activities to the list of major life activities covered by the ADA, including physical tasks such as walking, standing, and lifting; mental tasks such as learning, reading, sleeping, and thinking; and major bodily functions, such as immune system function, cell growth, and reproductive function.

‘Regarded As’ Protection

Courts construing the “regarded as” provision of the ADA generally have ruled that even if an employer discriminates against an employee because of an actual or perceived physical or mental impairment, there is no violation unless the employer regarded the individual as having an impairment that constituted a disability within the meaning of the ADA

The new law expands “regarded as” protection by prohibiting employers from discriminating against employees based on a perception of an impairment, even if that perceived impairment does not rise to the level of a disability under the ADA.  Under the amendments, if the employer takes action because of that perceived restriction, the individual is ADA-covered. 

The ADAAA’s Impact on Employers

The ADAAA’s broadened standards clearly will mean that more employees will qualify for the protection of the ADA.  As a result, employers can expect an increase in employees with newly-covered impairments seeking accommodations at work and disability-related leaves.  Moreover, there will likely be an increase in disability discrimination claims filed with the Equal Employment Opportunity Commission and increased litigation. 

With the broadened scope of the ADA, employers will need to update their approach to employees with medical conditions.  Common impairments that were not previously considered disabilities may now be covered disabilities under the ADA.  To prepare for the impact of the new standards, employers should consider all of the following measures:

·   Evaluate job descriptions, paying particular attention to identifying the essential job functions of each position and ensuring that those job functions are accurately depicted in all employee handbooks and online job descriptions.

·   Update disability discrimination training for all supervisors and Human Resources personnel to ensure that they have a full understanding of the new law.

·   Evaluate policies and practices on reasonable accommodation of disabilities and disability leave in order to ensure that they are up to date and in compliance with the new law.

If you have any questions concerning compliance with these amendments to the ADA, please contact any of the Firm’s attorneys.