The ADA Amendments Act of 2008 - What Every Employer Must Know

October 30, 2008

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On September 25, 2008, President Bush signed the recently approved ADA Amendments Act of 2008 ("ADAAA") into law, effective January 1, 2009, "to restore the intent and protections of the Americans with Disabilities Act of 1990." Congress apparently did not appreciate the narrow construction it believed the U.S. Supreme Court and EEOC were giving the ADA, and decided a "restoration" was in order. Accordingly, the amendments will expand disability protection to provide coverage to more individuals. Covered employers must take these changes seriously; those that don't will almost certainly keep their lawyers busier than necessary. This article explains the relevant changes and offers suggestions to ensure compliance with the new amendments.

Thirty-five years ago, Congress defined "handicapped" when it enacted the Rehabilitation Act of 1973. After observing seventeen years of litigation, it expected the use of the term "disability" in the ADA of 1990 would be given similar effect. "That expectation has not been fulfilled." Instead, Congress witnessed what it perceived as the U.S. Supreme Court in cases like Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) and Sutton v. United Air Lines, 527 U.S. 471 (1999) "narrow[ing] the broad scope of protection intended to be afforded by the ADA." It further believed the EEOC defined at least a portion of the ADA in a way that was too restrictive and overly limited coverage. Lower courts obviously followed suit, and arguably misapplied a statute intended to be much broader in scope. Congress has responded, boldly and decisively, as stated below.

The ADAAA retained the definition of a disability as originally enacted in the ADA: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." However, the amendments contain several important provisions that significantly change the manner in which the ADA will be interpreted and applied. To minimize liability and conform to the law's forthcoming changes, every employer should be aware of the following:

  1. "A physical or mental impairment." Congress now considers any "impairment that is episodic or in remission" a disability if it would substantially limit a major life activity when active.
  2. "Substantially limits." As it has been applied by the courts, the ADA did not permit the finding of a "disability" if an individual could use "mitigating measures" to remove the substantial limitation on a major life activity. The law now makes the determination of whether an impairment substantially limits a major life activity without regard to mitigating measures. So, the use of medication, medical supplies, and hearing aids no longer serve to remove someone from "disability" status. Note: Congress expressly excluded "ordinary eyeglasses or contact lenses" from this list, so an individual cannot claim protection if ordinary eyeglasses or contact lenses take away the substantial limitation on sight.Also noteworthy, Congress believed "substantially limits" had been inappropriately construed to mean "significantly restricted." Although it did not provide much further guidance, it made clear that the question of whether an individual's impairment substantially limits the individual "should not demand extensive analysis." The EEOC will now revise the definition to be consistent with the ADAAA, and employers should delete any reference to "significantly restricted" from their collective vernacular and manuals.
  3. "Major life activities." Under the ADA, major life activities included caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, speaking, walking, etc. The ADAAA now includes "major bodily functions" as major life activities. This means, for example, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions are now considered major life activities.
  4. "Being regarded as having such an impairment." When passed in 1990, the ADA protected those "regarded as" having an impairment that substantially limited a major life activity, even if the person in reality was not limited in any major life activity. A necessary element was the employer's subjective belief that the impairment substantially limited a major life activity of the employee. As of January 1, 2009, an individual will be "regarded as" having a disability if the employer discriminates based on what is perceived to be a non-"transitory" impairment. A transitory impairment is one that has an actual or expected duration of 6 months or less. In other words, if the employer thinks there's a physical or mental impairment that is expected to last more than 6 months, that thought will also satisfy the disability definition and accordingly give an individual standing to sue under the ADA. By including in the "regarded as disabled" class those who appear to be impaired more than six months, the ADAAA loosens the definition of those "regarded as disabled" by an employer.
  5. "Reverse Discrimination" Not Actionable. Employers can take comfort, albeit only slight comfort, knowing that the ADAAA does not "provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability."

Congress' intent was to increase the ADA's scope of protection, so it should surprise nobody when plaintiffs begin trying to use congressional action in their favor to expand coverage to the greatest extent practicable. This downside to employers is compounded by the placement of more importance on employers' intent, which will open the courtroom doors to some plaintiffs that file a cause of action based on speculation about employers' intent. Both the broader coverage of the statute and the emphasis on what is going on in the mind of an employer lead to the obvious reality: new legislation will mean new litigation. Unfortunately for employers, the construction of the amendments will allow the new litigation to present more triable issues that are more difficult to dispose of through summary judgment. Regardless of the uncertainty at the floodgates beginning January 1, 2009 the adage still remains that the best prepared usually prevail. Employers may not be able to prevent all lawsuits, but they can certainly place themselves in a better position by taking simple steps. Employers, at a minimum, should seriously consider the following:

  1. Knowing the contents of every manual given to any employee and ensure its definitions and framework are consistent with the ADAAA;
  2. Searching the facility for displays and message boards and note where updates will be needed as of January 1;
  3. Informing employees of any policy changes;
  4. Revisiting every denial of a requested accommodation of a current employee and apply the new amendments as necessary;
  5. Training and educating personnel, especially those in management and supervision regarding new standards.

Good human resources practices should be a constant in the midst of change in the law.