Following overwhelming passage in mid-September by Congress, President Bush signed the ADA Amendments Act of 2008 into law on Sept. 25, 2008. The legislation becomes effective on Jan. 1, 2009.
The Act significantly changes the ADA by effectively rolling back many Supreme Court opinions over the last ten years that have narrowed the definition of disability. Important changes that will make it more difficult for employers to prevail in ADA litigation include:
- Requiring courts to construe the ADA in favor of broad coverage of individuals under the Act
- Prohibiting consideration of mitigating or ameliorative measures such as medication, prosthetics and low vision devices (not including ordinary eyeglasses or contact lenses)
- Defining "major life activities" more broadly than the courts have done
- Confirming that impairments that are episodic or in remission are "disabilities" if they would substantially limit a major life activity when active
- Recognizing the authority of the EEOC to issues regulations implementing the definition of "disability"
There are some silver linings for employers. The Act also makes clear that employers are not required to reasonably accommodate "perceived" disabilities and that "temporary" impairments are not disabilities.
So, what does the ADA Amendments Act mean for you?
Like the increase in ADA litigation in the mid- to late 1990s, a significant increase in requests for accommodation, charges of discrimination and litigation over disability related issues in the workplace is likely. Employers should review their reasonable accommodation policies and reassess their process for determining whether an individual is disabled, and thus entitled to protection under the ADA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
