ADA Amendments Passed and Signed into Law, Effective January 1, 2009
By Ryan T. Neumeyer Employment: ADA Amendments Passed and Signed into Law, On September 25, 2008, President Bush signed the ADA Amendments Act (ADAAA) into law. The ADAAA opens the door for more employees (who formerly would not have been considered disabled under the applicable case law) to assert rights under the ADA.
Generally, the ADAAA does the following:
- provides that the term “disability” shall be construed in favor of broad coverage for individuals;
- prohibits the consideration of “mitigating measures,” such as medication, medical supplies, prosthetics, hearing aids, mobility devices and assistive technology, in determining whether an individual has a disability;
- allows plaintiffs to make a claim under the “regarded as” provision regardless of whether the impairment substantially limits a major life activity. However, the ADAAA does provide that "transitory and minor" impairments cannot be the basis of a "regarded as" claim. Transitory impairments are defined as impairments with an actual or expected duration of six months or less. There is no definition as to what constitutes a "minor" impairment;
- provides that there is still no obligation to accommodate an individual who is “regarded as” disabled;
- clarifies that an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability;
- states that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
- clarifies that an individual who is not disabled under the ADAAA cannot bring a claim for reverse discrimination because they were treated worse than a person with a disability; and,
- provides a non-exhaustive list of what constitutes a major life activity, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.
The ADAAA overturns the U.S. Supreme Court case, Sutton v. United Air Lines, Inc., in which the Court held that the determination of whether an individual has a "substantial impairment" must be made while taking into account the use of any medications, corrective lenses, hearing aids or other corrective measures. Now, the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as medication, medical supplies, equipment, appliances, low-vision devices (which do not include ordinary eye-glasses or contact lenses), prosthetics including limbs and devices or hearing aids and other cochlear implants.
The ADAAA also overturns the U.S. Supreme Court case of Toyota v. Williams, in which the Court construed the term "substantially limits" to mean "considerable" or "to a large degree," thereby precluding impairments that interfere in only a minor way with performing tasks from being covered by the ADA. The ADAAA now provides that the standard set out by the Supreme Court in Toyota was too restrictive and that a broader, more inclusive, meaning was meant by Congress when the ADA was passed.
As the result of the ADAAA, many employees who were not previously protected under the ADA will be. Accordingly, there will likely be an increased number of requests for accommodations made to employers. These requests must be considered in light of the ADAAA. Therefore, employers should revisit their existing handbook policies and procedures in order to avoid potential lawsuits based on improperly denied accommodations. Please do not hesitate to contact Lynn Schonberg or Ryan Neumeyer with any questions concerning the ADAAA or for assistance in updating existing handbook policies and procedures.
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