On September 17, 2008, Congress approved the ADA Amendments Act of 2008 (the "Act") which significantly amends the Americans with Disabilities Act (the "ADA"). The Act has now passed both the House and Senate and is expected to be signed by President Bush before the end of September and will be effective January 1, 2009. If signed, the Act will significantly broaden the protections afforded by the ADA, require greater employer vigilance in handling employees with alleged disabilities, and probably lead to increased (and more difficult) ADA litigation for employers.
When originally passed in 1990, employers criticized the ADA for potentially applying to every individual with any type of physical or mental imperfection, regardless of actual impact on day to day living. However, decisions by the U.S. Supreme Court narrowed the impact of the ADA to those disabilities not subject to mitigation which significantly limited a broad range of major life activities. Specifically, the Supreme Court held that the ADA did not protect airline pilot job applicants who had poor eyesight that could be corrected by glasses. The Supreme Court also refused to apply the ADA to an individual with carpal tunnel syndrome that could still perform certain jobs and care for herself although limited from performing her prior job. Based on these decisions, courts have routinely denied ADA claims by individuals with correctable ailments (poor vision, diabetes, epilepsy, etc.) or who are only limited in a narrow class of life activities.
The Act, if Signed by the President, Changes Everything
Congress has explicitly rejected the Supreme Court decisions mentioned above and has essentially reversed the outcomes of the decisions and their progeny. The Act amends the ADA's definition of "disability" to apply to impairments that are dormant or in remission or that can be ameliorated or mitigated. Also, the Act makes it easier for an individual to demonstrate being "regarded as" disabled. The ADA will now also apply to impairments that substantially limit only one major life activity. And "major life activity" will now include major bodily functions such as cell growth, endocrine functions, neurological functions, digestive functions, respiratory functions, and reproductive functions. In other words, individuals with fully managed diabetes or controlled asthma or fertility difficulties will now be protected under the ADA.
The Impact on Employers will be Substantial
All employers should review their policies and procedures to ensure continued compliance with the ADA and undertake supervisor training to promote increased sensitivity and awareness of ADA-related issues or requests for accommodation. Employers must also renew their focus on whether employment decisions are made on the basis of a protected disability. Finally, employers must prepare for increased utilization of the interactive process as more individuals will now be protected by and, presumably, seeking the benefits afforded by the ADA.
A summary of the Act is available at:
The full text of the Act is available at:
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.