Publication

September 25, 2008Client Alert

New Law Broadens Americans with Disabilities Act (“ADA”) Protections

On September 17, 2008, Congress passed the ADA Amendments Act, a law that President Bush will sign and which will take effect on January 1, 2009. The law is designed to overturn several U.S. Supreme Court decisions that narrowly interpreted the ADA and its protections.

Congressional Intent

Much of the text of the ADA Amendments Act of 2008 is devoted to an explanation of why Congress felt the need to "restore the intent and protections" of the ADA and provide "broad coverage" to protect persons with disabilities against discrimination.

Congress took direct aim at cases like Sutton v. United Air Lines, 527 U.S. 471 (1999) in which the court held that "mitigating measures" that help individuals control or cope with impairments must be considered in determining whether an individual is disabled within the meaning of the ADA and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) which held that a very high standard should apply in determining whether a person with impairments is "substantially limited" in major life activities and therefore disabled under the ADA.

Congress has made it clear that the question of whether an impairment is a "disability" should not demand extensive analysis because the definition of "disability" must be "construed in favor of broad coverage of individuals under this Act."

The Specifics

For planning purposes, employers should focus on several key provisions of the new law using "rules of construction" that are consistent with Congress' intent to lower the bar for employees to receive ADA protections.

1. The term "disability" means: (1) a physical or mental impairment that substantially limits one or more major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment.

2. "Impairment." The new law states:

a. An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

b. An impairment that is "episodic or in remission" is still a disability if it substantially limits a major life activity "when active."

3. "Substantially Limits." The new law retains the old language but:

a. Makes it clear that the term should be interpreted using a less demanding standard than the courts have used ("prevents or severely restricts") in the past; and

b. Instructs the EEOC to revise the regulation that currently defines the term "substantially limits" as "significantly restricted" and come up with a new definition that is consistent with Congress' intent to allow broader coverage under the ADA.

c. In general, the determination of whether an impairment substantially limits a major life activity must be made "without regard to the ameliorative effects of mitigating measures."

d. The law includes a long list of "mitigating" measures such as "medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications."

e. The term "auxiliary aids and services" includes "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments; acquisition or modification of equipment or devices; and other similar services and actions."

4. The term "major life activities" will also be interpreted using a less demanding standard than the courts have used in the past:

a. It continues to include obvious things like "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working."

b. It is expanded to include the "operation of a major bodily function" such as "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."

5. The term "regarded as having such an impairment" now means the person has been subjected to an adverse action "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

a. The "regarded as" prohibition does not apply to impairments that are "transitory (i.e., have an actual or expected duration of 6 months or less) and minor".

What to Do

The ADA Amendments Act are clearly designed to re-establish coverage for people with diabetes, dyslexia, and a range of other impairments who were regarded by the courts as "not disabled enough" under the law. Congress now expects employers to apply a "less demanding standard" when interpreting the ADA's coverage.

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