Labor and Employment Update

President Bush Signs the ADA Amendments Act of 2008 - Expanded Disability Coverage Under the Americans with Disabilities Act

On September 15, 2008, President Bush signed into law S. 3406, the “ADA Amendments Act of 2008” (“ADAAA”), which clarifies and broadens the definition of disability and expands the population eligible for protections under the Americans with Disabilities Act of 1990. The ADAAA takes effect on January 1, 2009. The Amendment does not change the statutory definition of “disability.” An ADA “disability” continues to be defined as: (1) a physical or mental impairment that “substantially limits” one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment. However, the ADAAA expands the interpretation of the component parts of this definition of “disability” in several ways:

Call for New EEOC Definition of “Substantially Limits”

The ADAAA disapproves the EEOC’s current definition of “substantially limits” as “significantly restricted,” and directs the EEOC to issue new regulations defining “substantially limits” consistent with the ADAAA’s stated purpose of broadening disability coverage.

Major Life Activities Expanded

The ADAAA includes a detailed but non-exclusive list of major life activities, including: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” As amended by the ADAAA, major life activities under the ADA will also expressly include “major bodily functions,” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.”

Episodic Conditions May Be Covered

The ADAAA adds “rules of construction” to the ADA that further expand disability coverage, most notably regarding episodic conditions and mitigating measures. The Amendment provides that a person with an episodic health impairment, including one in remission, is a covered individual with a disability, so long as the condition would substantially limit a major life activity when active. This provision will expand disability coverage to individuals with cancer that is in remission, and other similar conditions, who many courts had previously concluded were not covered under the ADA.

Mitigating Measures Not Considered

The ADAAA rejects prior Supreme Court interpretations of the ADA concerning the impact of mitigating measures, such as hearing aids, medications, prosthetics, etc., that could lessen the adverse effects of an impairment. As amended by the ADAAA, the ameliorative effects of such mitigating measures may not be considered in determining whether a person is disabled. The one exception to this rule is that ordinary eyeglasses and contact lenses may be considered.

Expanded Coverage for “Regarded As” Disability Claims

The ADAAA also expands the meaning of the third definition of disability--the “regarded as having such an impairment” definition. Previously, in applying the “regarded as” definition, federal courts had required proof that the employer regarded the employee as being disabled under the primary definition--i.e., that the employer regarded the employee as substantially limited in a major life activity by a physical or mental impairment. Under the amended ADA, to meet the “regarded as” standard, an employee need prove only that the employer perceived the individual as having a mental or physical impairment, whether or not the impairment limits or is perceived to limit a major life activity. The ADAAA does carve out one exception, stating that the “regarded as” definition does not apply if the perceived impairment is “transitory and minor,” defined as one having an actual or expected duration of 6 months or less. The ADAAA also makes explicit that individuals “regarded as” disabled are not entitled to reasonable accommodations.

Impact on Employers

Congress’s intent to broaden disability coverage by the ADAAA is abundantly clear. As amended by the ADAAA, disability coverage under the ADA likely will expand to include individuals with epilepsy, diabetes, cancer, multiple sclerosis and other conditions that previously had been denied coverage where the conditions could either be controlled by medications or other measures or would have remissive and active stages. Employers might expect to see an increase in requests for reasonable accommodations, and should review their procedures for responding to such requests to acknowledge this expanded disability coverage. Employers might also expect to see an increase in litigation testing the limits of the new provisions, at least in those states that do not already have more generous state disability discrimination laws. Employers should carefully review their policies and procedures regarding disability discrimination and requests for reasonable accommodation in light of the ADAAA and modify as needed prior to the January 1, 2009, effective date.