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Congress Passes ADA Amendments Act: Greatly Expanded Coverage Means Big Changes for Many Employers' Policies

September 23, 2008

On September 17, 2008, Congress passed the ADA Amendments Act (ADAAA). The new law not yet signed by President Bush, which was a bi-partisan effort, overrides a variety of Supreme Court rulings interpreting Title I of the ADA of 1990, which will result in a broader application of the ADA.  Accordingly, many of the changes mandated by the ADAAA  have significant implications for employers, from the definition of “major life activities” to prohibiting employers from considering most mitigating measures in determining whether an applicant or employee’s impairment “substantially limits” a major life activity. Effective January 1, 2009  (assuming President Bush signs into law, and recent indications are that he will), the ADAAA therefore will require many employers to re-evaluate and revise their current ADA policies and procedures, particularly with respect to accommodation.

The Reason Congress Revised the ADA

As the preamble to the ADAAA explains, when the ADA was passed in 1990, Congress intended that Title I’s prohibition on discrimination in employment because of an individual’s disability be broadly applied. The original law, like the new one, defines disability as a physical or mental impairment that “substantially limits” one or more "major life activities,” and provides covered individuals with the right to a reasonable accommodation of their disability. Both laws also cover individuals with “a record of such impairment” or who are “regarded as” having such impairment.

The original act, however, was mostly silent on the meaning of critical terms, such as “substantially limits” and “major life activities.”  In the opinion of Congress, in a series of decisions interpreting the meaning of those terms, the Supreme Court narrowly construed the language and, in doing so, severely restricted the types of impairments covered by the law.

For a number of years now, advocates for the disabled, as well as some members of Congress, have complained about the Court’s strict interpretation of the statute and have sought to undo those rulings. Finally, a bi-partisan agreement, with input from the business community, was reached, resulting in the ADAAA.

How the ADAAA Changes the ADA

The ADAAA makes clear that it intends to provide “a broad scope of protection” to individuals with disabilities. Toward this end, the new statute:

  • Greatly expands the definition of “major life activities” to include a laundry list of activities ("caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working"), as well as "major bodily functions" (including, but not limited to, "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions").

Under this definition, a whole host of impairments previously excluded from ADA coverage, and which may not have a direct relationship to the activity of working, could now fall within its purview, such as insomnia (impaired in the major life activity of sleeping), dyslexia (learning), stuttering (speaking), and attention deficit disorder (concentrating), as long as the impairment is “substantially” limiting.

  • Requires courts to interpret liberally the term “substantially limits” (“to the maximum extent permitted” by the act).  To help ensure an expansive construction of “substantially limits,” the ADAAA, with only one significant exception, now prohibits an employer from considering the ameliorative effects of mitigating measures, such as medication, on an individual’s impairment. Thus, for example, in determining whether an applicant or employee with a heart condition or diabetes is “disabled” within the meaning of the statute and therefore entitled to a reasonable accommodation, an employer may no longer consider if, or to what extent, medication diminishes or controls the impairment.

Other mitigating measures that may not be considered include prosthetics, hearing aids and assistive technology. Hence, an individual who would be deemed disabled under the statute absent any of these mitigating measures now is covered.

The ADAAA, however, does contain one important exception to the elimination of mitigating measures as a consideration and that is for “ordinary eye glasses or contact lenses to correct poor vision.”

  • Broadens the definition of “disability” to include impairments that are episodic or in remission if they would substantially limit a major life activity when the individual is active.
  • Makes clear that under the “regarded as” prong, an employer need only perceive that the individual has a physical or mental impairment (overriding court decisions requiring a plaintiff to show that the employer regarded him or her as being substantially limited in a major life activity).

The new law, however, also restricts the coverage of individuals who are “regarded as" disabled by making that term inapplicable to individuals with a “minor” and “transitory” condition (e.g., a condition that lasts, or is expected to last, six months or less). Further, individuals “regarded as” disabled are not entitled to accommodations.

  • Eliminates doubts, raised by the Supreme Court, concerning the Equal Employment Opportunity Commission’s authority under the ADA to develop and implement binding regulations. Further, the ADAAA expressly directs the agency to define “substantially limits” in a manner consistent with the act, which means that it will be significantly broadened.
  • Bans lawsuits by non-disabled individuals for “reverse disability discrimination.”
  • Extends the changes contained in the new law to the Rehabilitation Act. That statute prohibits disability discrimination by the federal government, federal contractors and in federally-funded programs.

Bottom Line

Considering the ADAAA’s  broad coverage mandate, the expanded definition of “major life activity,” the elimination of the mitigating measures consideration, and the easing of the burden on plaintiffs to meet the “regarded as disabled” standard, there can be little doubt that a surge in disability discrimination claims is just over the horizon. Employers should also bear in mind that more disability claims are likely to survive a motion for summary judgment, as disputes over whether a particular impairment “substantially limits” a “major life activity” under the new law will often involve questions of fact.

To minimize their exposure to disability claims, employers should undertake a thorough review of all relevant policies, including job applications and interview inquiries, and pay particular attention to the interactive process policies they use when handling applicant or employee requests for reasonable accommodations. For example, employers now must evaluate a request for accommodation without consideration of mitigating measures and, at least until the EEOC issues new regulations, without a clear understanding of such terms as “substantially limits.”