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AMERICANS WITH DISABILITIES ACT
AMENDED TO PROVIDE MORE PROTECTION
TO DISABLED
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Congress overturned
the Supreme Court’s established narrow
view of the Americans with Disabilities
Act (ADA) by passing the ADA Amendments
Act of 2008 (ADAAA), broadening the
scope of the ADA. President Bush signed
the ADAAA into law on September 25,
2008. After the Act’s January 1, 2009
effective date, more employees will
qualify for protection under the ADA.
BACKGROUND
As originally
drafted, the ADAAA was known as the ADA
Restoration Act and provided greater
rights to employees than the ADAAA. In
light of the strong opposition by
employer groups, the ADAAA was a
compromise between the interests of
disability groups and those of business.
DEFINITION OF A QUALIFYING DISABILITY
The ADA defines a disability as a
physical or mental impairment that
"substantially limits" one or more major
life activities. In interpreting the
ADA, the Supreme Court and the Equal
Employment Opportunity Commission (EEOC)
narrowly defined "substantially limits",
stating that an impairment must prevent
or severely restrict the performance of
a major life activity to qualify for ADA
protection. The ADAAA rejects this
narrow definition stating that the term
disability is to be “construed in favor
of broad coverage of individuals…to the
maximum extent permitted by the terms of
the Act.” To carry out this intent,
Congress directed the EEOC to revise its
regulations, replacing "substantially
limits" with the broader significantly
restrict[s]. This broader definition
will result in more individuals being
deemed disabled and entitled to
protection under the ADA.
MITIGATING MEASURES CAN NO LONGER BE
CONSIDERED
The Supreme
Court previously held that an individual
does not qualify as disabled under the
ADA if mitigating measures, such as
medication or medical equipment, prevent
the individual’s condition from
interfering with a major life activity.
For example, under this standard, if an
individual were diabetic but controlled
the diabetes with insulin, that
individual may not have a qualifying
disability under the ADA. The ADAAA
rejects this approach, requiring the
disability determination be made without
regard to the ameliorative effects of
mitigating measures. (The ADAAA does
make an exception, allowing ordinary eye
glasses and contact lenses to be
considered when determining whether
someone has a disability.)
EXPANDED PROTECTION FOR INDIVIDUALS
“REGARDED AS” DISABLED
Under the ADA, individuals are covered
under the Act if they are regarded as
having an impairment that substantially
limits a major life activity. The ADAAA
provides that an employer may be liable
under the regarded as provision if an
employee can demonstrate discrimination
because of an actual or perceived
impairment, regardless of whether the
impairment actually limits, or is
perceived to limit, a major life
activity. This means that after January
1, 2009, an employee will only need to
establish that they suffered an adverse
employment action based on a perception
that they had an impairment.
One positive for employers is that the
ADAAA states that this protection does
not extend to transitory and minor
impairments with an actual or expected
duration of six month or less. The Act
also clarifies that an employer is not
required to provide a reasonable
accommodation to an individual who is
regarded as disabled.
IMPAIRMENTS THAT ARE EPISODIC OR IN
REMISSION
The ADAAA
extends protection to individuals with
an impairment that is episodic or in
remission if, when the condition is
active, it substantially limits a major
life activity.
WHAT
THIS MEANS FOR EMPLOYERS
While the ADAAA does not make changes to
the ADA’s reasonable accommodation
requirements, the fact that the Act
significantly broadens who may be deemed
disabled means employers will likely
receive more requests for reasonable
accommodations. In anticipation of the
January 1, 2009 effective date,
employers should review their policies
to ensure compliance with the ADAAA and
provide training to human resources,
supervisors and managers on the ADAAA’s
more liberal entitlements.
The text of the ADAAA can be found at:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s3406enr.txt.pdf.
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