ADA Amendments Act of 2008 (ADAAA), Newsletter Article Spring 2009

Vol. 11
No. 1
Spring
2009

INSIDE

Employee Free Choice Act (EFCA)
Employers Survival Kit

ADA Amendments Act of 2008
(ADAAA)

Guns In The Workplace
Update

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ADA Amendments Act of 2008 (ADAAA)

Overview

EEOC Notice

Point by Point Coverage

Links to the Full Text of the Law

How Does This Affect Employers

Overview

ADA Amendments Act of 2008:
On September 25th, 2008, President Bush signed Public Law 110-325, otherwise known as the ADA Amendments Act of 2008.

This new law amends the Americans with Disabilities Act of 1990 (ADA) to broaden the definition of disability.

Who is Affected:
Employers who have been covered by the ADA before (those who have 15 or more employees) are going to be covered by this new law.

Effective Date:
The ADA Amendments Act of 2008 took effect on January 1, 2009.

EEOC Notice

Notice Concerning The Americans With Disabilities Act (ADA) Amendments Act Of 2008

On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act makes important changes to the definition of the term "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways.

Most significantly, the Act:

directs EEOC to revise that portion of its regulations defining the term "substantially limits";
expands the definition of "major life activities" by including two non-exhaustive lists:
states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor;
provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation; and
emphasizes that the definition of "disability" should be interpreted broadly.

EEOC will be evaluating the impact of these changes on its enforcement guidances and other publications addressing the ADA.

Effective Date:

The ADA Amendments Act is effective as of January 1, 2009.

http://www.eeoc.gov/ada/amendments_notice.html

Point by Point Coverage

Here is some further information about the main points covered in the EEOC Notice
concerning the ADA Amendments Act of 2008:

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"Substantially Limits" Change

1. The Act "Directs EEOC to revise that portion of its regulations defining the term 'substantially limits'" -

According to the ADA Amendments Act (ADAAA) the current Equal Employment Opportunity Commission's ADA regulations definition of the term "substantially limits" as "significantly restricted," is too high a standard to be consistent with Congressional intent of the original law.

The ADAAA rejects the Supreme Court's requirement that the word "substantially" be interpreted strictly to create a demanding standard for individuals seeking to qualify as disabled.

In addition the ADAAA rejects the Supreme Court's rule that the word "substantially" be read to mean "prevents or severely restricts." In this regard, the ADAAA significantly reduces the degree of impairment required for protection under the ADA.

The ADAAA provides that an impairment that substantially limits one major life activity need not limit other major life activities to be considered a disability.

It also provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when it is active.

The ADAAA provides that 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, prosthetics, hearing aids, mobility devices, and oxygen therapy equipment.

There is an important exception to this rule that states that the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

The reason for this exception is to prevent the many individuals who wear either ordinary glasses or contact lenses from making claims of disability on those grounds.

Here are portions of the actual act addressing this issue:

"The Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term "substantially limits" as "significantly restricted" to be consistent with this Act, including the amendments made by this Act."

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

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

"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, 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."

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"Major Life Activities" Change

2. The Act "Expands the definition of 'major life activities' by including two non-exhaustive lists:"

In the past the ADA was not involved in determining what a major life activity was, basically leaving the issue to the courts to decide.

But the new law has the list of activities considered to be a "major life activity" as seen in the text below.

The ADAAA now states that the operation of any major bodily function is considered a major life activity. For employers, this is an indication that a "disability" is going to be more broadly considered than in the past.

Here is the actual text pertaining to this area -

"(2) Major life activities.--

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Eyeglasses and Contacts Exception

3. "States that mitigating measures other than 'ordinary eyeglasses or contact lenses' shall not be considered in assessing whether an individual has a disability"

Ordinary eyeglasses or contact lenses CAN be considered when determining if someone is disabled.

Here is the actual text pertaining to this area -

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Episodic Impairments / Remission Clarification

4. "Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active"

Previously under the ADA, individuals were denied protection if their condition could be treated with medication or was in remission.

A change under the new ADAAA is that an impairment now qualifies as a disability if, when active, it would substantially limit a major life activity, such as hearing, walking or communicating.

"(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active."

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Relaxes "Regarded As" Requirement

5. "Provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the 'regarded as' definition of disability, unless the impairment is transitory and minor"

The ADA currently prohibits discrimination against an individual who is "being regarded as" having a disability.

Until now, an individual claiming that he or she was "regarded as" having a disability had to prove that an employer regarded him or her as being substantially limited in a major life activity.

The ADAAA now provides that an individual may be unlawfully regarded as having a disability "whether or not the impairment limits or is perceived to limit a major life activity."

In addition the new law provides that an employer is not required to provide a reasonable accommodation or make reasonable modifications to policies, practices, or procedures for an individual who meets the "regarded as" prong of the definition of disability.

There is now a provision that transitory and minor impairments which have an actual or expected duration of less than six months are not considered disabilities under the "regarded as" prong of the definition of disability.

Here is the actual text pertaining to this area -

"(3) Regarded as having such an impairment.--For purposes of paragraph (1)(C):

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Disability Interpreted 'Broadly'

6. "Emphasizes that the definition of 'disability' should be interpreted broadly"

The new ADAAA clarifies that Congress meant for the Americans with Disabilities Act to be broadly interpreted.

Here is the actual text pertaining to this area -

This new bill leaves the ADA's disability definition in place, but takes several specific steps to direct courts toward a more generous meaning and application of the definition. Courts are to provide coverage to individuals - "to the maximum extent permitted".

Here is the actual text -

(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms "substantially" and "major" in the definition of disability under the ADA "need to be interpreted strictly to create a demanding standard for qualifying as disabled," and that to be substantially limited in performing a major life activity under the ADA "an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives";

Links to the Full Text of the Law

This Link will take you to the full text of the new law:
http://www.access-board.gov/about/laws/ada-amendments.htm

The links below are to other versions of the full text of the law:

Full Text:
http://www.govtrack.us/congress/billtext.xpd?bill=h110-3195

PDF File of the full text:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s3406enr.txt.pdf

This page tracks the progress of the bill among other things:
http://www.opencongress.org/bill/110-s3406/show

How Does This Affect Employers

Employers affected by the ADA would be advised to become fully educated on the new compliance requirements.

If necessary they should seek the help of a professional to see which changes need to be made to existing company policies and procedures to ensure a seamless and successful transition from the ADA to the ADAAA.

Under the new law employers will now be required to adopt a broader standard in determining if an employee is "disabled". Courts are now directed to provide coverage to individuals "to the maximum extent permitted".

This likely means that in the short term more ADA cases are going to pass initial threshold tests, and that there may be an increasing number of litigations targeting companies in order to test the extent of the new amendments

From now on the scrutiny will shift from determining whether an employee is "disabled" to whether the employer covered by the ADA met its legal obligations. The question as to whether an employee's impairment qualifies as a disability will not receive extensive analysis anymore.

There are enough changes to the ADA and the cases interpreting the ADA over the past 10 years that employers may need to treat the ADAAA in effect as an entirely new law.

It is too early to tell exactly how all of this will play out and affect employers, but it is certain to have some significant ramifications

Until the ADAAA is tested in court, it is not possible to predict the precise standard to which employers will be held in the future.

If you need help specific to your company or organization please contact Braun Consulting Group for more information.

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