New ADA Amendments Expand Law’s Reach
On September 25, 2008, President Bush signed into law the Americans with Disabilities Act Amendments Act (“ADAAA”), which became effective January 1, 2009. The ADAAA strengthens protections for employees covered by the Americans with Disabilities Act (“ADA”).
Although the basic definition of disability under the ADA remains unchanged, the ADAAA specifies that “[t]he definition of disability shall be construed in favor of broad coverage of individuals under this Act.” Disability is still defined as: 1) a physical or mental impairment that substantially limits one or more major life activities; 2) a record of such impairment; or 3) being regarded as having such impairment. The ADAAA ensures broader coverage of employees by revising several important concepts, including the following:
- Most mitigating measures are no longer considered. The ADAAA provides that the determination of whether an impairment substantially limits a major life activity must be made “without regard to the ameliorative effects of mitigating measures.” In other words, courts may no longer consider the effects of medication, “assistive technology,” or employers’ accommodations on the impairment in question. Ordinary eyeglasses or contact lenses, however, still will be considered in the impairment analysis.
- Expanding the concept of “substantially limits.” Previously, only those impairments that “prevent[ed] or severely restrict[ed] . . . [the performance of] major life activities” were covered by the ADA. The new law directs the Equal Employment Opportunity Commission (“EEOC”) to craft a less restrictive standard for measuring the extent to which an individual is substantially limited in a major life activity.
- Impairments that are episodic in nature or in remission are now covered. The U.S. Supreme Court previously instructed courts to focus on an individual in his or her present state when determining the presence of a disability. Rejecting this approach, the ADAAA provides that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”
- Revising the definition of “major life activities.” Prior to the amendments, the task of defining major life activities was left to the EEOC. The new law incorporates a non-exhaustive list of examples into the statute and adds new activities such as eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating.
- Expanding coverage for employees “regarded as” disabled. Previously, an employee had to prove that because of a disability, an employer regarded the employee as being substantially limited in a major life activity. Under the ADAAA, an employee is protected from discrimination on the basis of an actual or perceived impairment, regardless of whether the impairment actually limits a major life activity. While the ADA formerly focused on the severity of a plaintiff’s impairment, the new law frames the inquiry on the employer’s motivations in making an adverse employment action.
The ADAAA contains several key restrictive changes. For example, prior to the amendments, courts were divided on the issue of whether an employer had to accommodate employees merely “regarded as” disabled. The ADAAA settles this issue, providing that employers “need not provide reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets the “regarded as” definition. Moreover, the ADAAA provides that an employee “regarded as” having an impairment that is merely minor and transitory is not afforded any protection. Finally, the amendments expressly foreclose the possibility of reverse discrimination actions made on the basis of an individual’s “lack of disability.”
The federal Office of Disability and Employment Policy’s Job Accommodation Network has developed a resource page http://www.jan.wvu.edu/bulletins/adaaa1.htm regarding the ADAAA. This resource page http://www.jan.wvu.edu/ bulletins/adaaa1.htm is worth viewing as it clearly explains the new legislation and lists practical tips for employers. Many provisions of the ADAAA will be detailed and enforced by the EEOC in regulations to be issued in 2009.