United States: ADA Amendment Has Wide-Ranging Impact On 15+-Employee Companies

On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (ADAAA), which includes some significant changes to the Americans with Disabilities Act (ADA). The new law, which becomes effective on January 1, 2009, will have a wide-ranging impact on all companies with more than 15 employees.

The ADA, passed in 1990, prohibits discrimination against qualified individuals with disabilities. A qualified individual is one with, or regarded as having, a physical or mental impairment that substantially limits one or more major life activities. Such an individual is entitled to a reasonable accommodation from her employer as long as the individual can perform the essential functions of her job.

Changes to Definition of "Disability"

The ADAAA does not specifically change the ADA's definition of disability, but does adopt a new broad standard for determining whether an employee is disabled. The Findings and Purposes section of the ADAAA states that courts have interpreted the definition of disability too restrictively, and that employees who should have been protected under the ADA have not been. The Findings and Purposes section further states that the ADAAA overrules four Supreme Court cases because such cases were too restrictive in interpreting whether an employee was disabled. The ADAAA states that the term "disability" now must be construed in favor of "broad coverage of individuals . . . to the maximum extent permitted" by the statute. It is likely that because of the ADAAA, more employees will be found to be disabled and therefore subject to the protections of the ADA.

On the other hand, the ADAAA provides that an employee will not be considered disabled if she has a transitory or minor condition. Such impairments are defined as those with an actual or expected duration of six months or less.

Mitigating Measures No Longer Relevant

One of the cases specifically overturned by the ADAAA is the Supreme Court's decision in Sutton v. United Air Lines, Inc. (1999). In Sutton and the cases following it, the Court had held that courts must consider "mitigating factors" in determining whether a person is disabled. Therefore, employees who are able to effectively mitigate their impairment by the use of corrective measures, such as medication, were not protected under the ADA. However, the ADAAA specifically instructs courts not to consider "the ameliorative effects of mitigating measures" when determining whether an employee's condition substantially limits a major life activity. As a result of this significant revision, many employees not previously covered by the ADA will now qualify for its protection. However, the ADAAA does include a narrow exception for courts to consider ordinary eyeglasses or contact lenses in determining whether a vision impairment is severe enough to warrant protection under the ADA.

"Major Life Activities"

Courts had previously decided what constituted a major life activity on a case by case basis, since they were not addressed in the ADA. However, the ADAAA also contains a list of examples of major life activities. Such activities now include, but are not limited to, caring for oneself, performing manual tasks, learning, reading, bending, concentrating, and thinking. The ADAAA also clarifies that "major life activities" include major bodily functions including, but not limited to, functions of the immune system, normal cell growth, digestion, bowel and bladder functions, as well as neurological, respiratory, circulatory, and reproductive functions.

"Substantially Limited"

The ADA mandates that an employee must prove that she is substantially limited in a major life activity. However, the ADAAA states that the Equal Employment Opportunity Commission and the Supreme Court, in Toyota Motor Mfg, Kentucky, Inc. v. Williams (2002) and the cases following it, imposed too high a standard on the term "substantially limited." Accordingly, the ADAAA instructs courts to construe this requirement "in favor of broad coverage under" the ADA. Moreover, the ADAAA directs the EEOC to revise its regulations on the definition of "substantially limited" to align with the ADAAA's goal of broadening coverage of employees under the ADA. It is unclear to what extent the definition of "substantially limited" will be modified under these new forthcoming regulations.

Additionally, under the ADA, a condition of short duration was insufficient to constitute a disability. However, under the ADAAA, an impairment that is episodic or in remission now will be considered a disability if it substantially limits a major life activity when the condition is active.

Expansion of "Regarded As" Claims

The ADA protects employees from discrimination because an employer "regarded" them as having a disability. Employees who claimed discrimination because they were regarded as having a disability had been required to prove that the perceived disability substantially limited a major life activity. Now, according to the ADAAA, an employer will be held liable under this theory if an employee can prove discrimination because of an actual or perceived impairment, whether or not the impairment actually limits or is perceived to limit one of the employee's major life activities.

However, the ADAAA does incorporate some friendly changes for employers. First, the ADAAA clarifies that employers have no duty to reasonably accommodate individuals who claim "regarded as" discrimination, and specifically states that "regarded as" claims cannot be based on transitory or minor impairments. Such impairments are defined as those with an actual or expected duration of six months or less. Moreover, the ADAAA prohibits "reverse discrimination" suits, stating that the ADA does not allow claims that an employee was subject to discrimination because of the employee's lack of a disability.

Bottom Line for Employers

Employers would also do well to ensure that those who handle employment issues involving employees with disabilities, such as decisions relating to the offering of reasonable accommodations, are trained adequately with regard to the provisions of the new law. Employers need to understand that under the ADAAA many more employees will qualify as disabled, and be prepared to deal with a significant increase in requests for reasonable accommodation. Rather than turning on questions of whether an employee is disabled, litigation under the ADA will likely now focus on more complex issues, such as whether the employer offered a reasonable accommodation, or the essential functions of a job. To avoid such litigation, employers now should consider reviewing their procedures for addressing employees' accommodation requests.

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.