United States: Expansion Of The ADA: The ADA Amendments Act Of 2008

On September 26, 2008, President Bush signed into law the ADA Amendments Act of 2008, thereby enacting legislation designed to reverse a series of employer-friendly U.S. Supreme Court opinions interpreting the Americans with Disabilities Act ("ADA"). This Act, which goes into effect on January 1, 2009, expands the definition of "disability" in favor of broad coverage under the ADA for individuals. It also broadens the protections for employees "regarded as" disabled by making it easier to fall within this definition. As a result, the protections of the ADA extend to substantially more employees than they had before these amendments were enacted.

Expansion of the Definition of Disability

The ADA Amendments Act specifically instructs that the definition of disability "shall be construed in favor of broad coverage under the Act, to the maximum extent permitted by the Act." In light of this, the amendments address three major changes: (1) mitigating measures; (2) major life activities; and (3) conditions that are episodic or in remission.

Mitigating Measures. Previously, employers could consider mitigating measures in determining whether an employee was disabled. Now, the amendments make clear that employers may not consider such measures, other than ordinary eyeglasses and contact lenses. Thus, medication, equipment, prosthetics, hearing aids, mobility devices, assistive technology, auxiliary aids, or learned behavior or adaptive neurological modifications must be ignored when making disability determinations.

Major Life Activities. Previously, the ADA did not identify major life activities. Now, however, the amendments provide an exhaustive and broad list of major life activities, which include caring for oneself, performing manual tasks, eating, sleeping, reading, concentrating, thinking, communicating, and working. The statute expressly identifies the "operation of any major bodily function" as a major life activity; meaning that an impairment affecting a bodily function, including the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions, may now constitute a disability under the law.

Episodic Impairments or Conditions in Remission. The amendments also provide that an impairment that is episodic or in remission is a disability if it "would substantially limit a major life activity when active." As a result of these changes, employers should expect that substantially more employees will fall within the definition of "disabled" and consequently be eligible for reasonable accommodations designed to enable the employee to perform the essential functions of the employee's job. Accordingly, employers should be prepared to engage in an interactive process with employees and carefully respond to requests from employees for reasonable accommodations.

Expansion of Class of Employees "Regarded As" Disabled

The ADA Amendments Act also makes changes to the standard for determining whether an employee is "regarded as" disabled under the ADA and therefore entitled to protection under the statute. Previously, the courts held that an employee alleging he was "regarded as" disabled by his employer, had to show that the employer regarded him as being substantially limited in a major life activity. With the new amendments, however, the individual need only show that the employer perceived him as having a mental or physical impairment. (Notwithstanding this broad definition, an employee will not be able to demonstrate that he was "regarded as" disabled if his impairment was "transitory" - lasting 6 months or less - and "minor.") Lastly, the amendments clarify that individuals "regarded as" disabled are not entitled to reasonable accommodations, although they are otherwise protected by the ADA.

What Should Employers Do Now?

The statute expressly directs the Equal Employment Opportunities Commission to issue regulations and interpretive guidance to further the intent of the statute, including the issuing of a new definition of "substantially limited" that is consistent with the purpose of the amendments. Accordingly, employers should expect additional regulations interpreting the ADA from the EEOC in the near future. Until that time, however, there are still several steps that should be taken:

Educate Human Resources on the New Amendments. Because the amendments broaden the group of employees eligible for protection under the Act, your Human Resources department must be ready to discuss accommodations with the workforce and to ensure that decisions are made for legitimate and non-discriminatory reasons.

Train Supervisors and Managers. Similarly, this is a good time to refresh your training for supervisors and managers regarding the interactive process for determining reasonable accommodations and for reinforcing your commitment to non-discrimination. Without training, supervisors and managers may not realize that flexible work schedules and time off may be reasonable accommodations, among other requests from employees.

Review your Policies on Reasonable Accommodations. This is a good time to update your policies on reasonable accommodations and to ensure that they are consistent with the new amendments to the ADA.

Carefully Monitor Employment Actions for Potential Disability Discrimination. With the new broad definition of disability, more employees are likely to fall within the protections of the ADA. Moreover, with the emphasis on such a broad definition, courts are more likely to allow a plaintiff to state a case of disability discrimination (i.e. the person can state they are covered by the Act) and employers will have to defend on the merits as to liability (i.e. was the person actually discriminated against). This means that having a legitimate, non-discriminatory reason for the decision, which can be clearly articulated, is critical.

Conclusion

With the passage of this bill, the number of individuals eligible for protection under the ADA has increased, particularly those who were previously excluded because of mitigating measures. This is likely to create a rise in demand for accommodations in the workplace, as well as, potentially heightened scrutiny from the EEOC as it creates more opportunities for systemic discrimination cases to be brought. Employers should take proactive steps now, to ensure that they are prepared when the amendments go into effect in January.

We will continue to keep you apprised of any further developments. If you have any questions or would like to discuss the impact of this statute on your workplace, please feel free to contact anyone in the Labor, Employment & Immigration group.

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.