President Bush announced yesterday that he will sign the ADA Amendments Act of 2008 (S.3406) (the "Amendments Act"), which materially alters how the Americans with Disabilities Act of 1990 (the "ADA") is interpreted. The Amendments Act, which will take effect on January 1, 2009, explicitly rejects a line of Supreme Court cases limiting the ADA and broadens the class of disabilities that are protected by the ADA.
The most significant changes in the Amendments Act are to what qualifies as a disability. These provisions include:
Definition of "Substantially Limits." A disability is defined in part as an impairment that substantially limits one or more major life activities. Supreme Court cases and Equal Employment Opportunity Commission ("EEOC") regulations narrowed "substantially limits" to situations where the individual was "significantly restricted." The Amendments Act rejects the stringent standard imposed by the Supreme Court and EEOC, providing instead that the definition of "substantially limits" should be read broadly, in favor of a finding that the individual is disabled.
List of Examples of "Major Life Activities."
Also broadening the definition of disability is the Amendments Act's listing of "major life activities," which, if substantially limited, support a disability finding. The Amendments Act includes a long, but not all-inclusive, list of "major life activities": "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working." The Amendments Act also provides that "major bodily functions" (such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions) qualify as "major life activities." While most of these activities would have been considered "major life activities" before the Amendments Act, their enumeration in the Amendments Act leaves no question that "major life activities" must be read very broadly in favor of a finding of disability.
Most Mitigating Measures Not Relevant to Determination. The Amendments Act also requires that the determination whether an individual is disabled or not be made "without regard to the ameliorative effects of mitigating measures." Thus, contrary to prior case law finding that an individual would not qualify as disabled if medication, equipment or other intervention sufficiently improved her substantial limitation, the Amendments Act specifically states that such "mitigating measures" are not to be considered. Thus, the Amendments Act provides that even if a diabetic employee is able to regulate her blood sugar with insulin, the fact that her diabetes is controlled cannot be considered in determining whether she is disabled. The only area in which the Amendments Act applies a different analysis is with respect to ordinary eyeglasses and contact lenses, which are to be considered in determining whether an individual has a visual disability.
Definition of "Regarded As" Disabled. Also expanded by the Amendments Act are the circumstances under which an individual is protected by the ADA as a result of being "regarded as" disabled. The Amendments Act provides that an individual will be deemed "regarded as" having a disability if he "establishes that [he] has been subjected to an action prohibited under this Act 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." (emphasis added). Thus, as of January 2009, it will not matter whether the impairment that an employee is "regarded as" having actually limits (or is perceived as limiting) the major life activity; all an employee will need to establish is that he suffered an adverse employment action because he was regarded as having an actual or perceived impairment.
Impairments that are Episodic or in Remission. Likewise, the Amendments Act expands coverage for impairments that are episodic or in remission, providing that an impairment that is episodic or in remission remains a disability even when it is inactive or in remission. Under this provision, an employee who had cancer but received treatment and is in remission will continue to qualify as disabled, even if treatment has concluded and the employee is cancer-free.
From a practical standpoint, the Amendments Act will impact not only how employers respond to requests for accommodation, but also any decisions relating to the terms or conditions of employment for employees (or prospective employees) who may be deemed disabled or perceived as disabled under the new, broader standards. It is important that employers train supervisors and managers regarding the ADA, emphasizing that the "old rules" no longer apply and that all issues relating to potential disabilities must be reviewed carefully with the appropriate member(s) of management. It is also critical that employers review their policies and practices to make sure that dealings with any employee or prospective employee with a physical or mental impairment are compliant with the broader ADA requirements that will take effect on January 1, 2009.
We expect that the changes to the ADA implemented by the Amendments Act will increase litigation of disability and "regarded as" claims, particularly until additional guidance is received from the EEOC and the courts. If you would like further guidance regarding the Amendments Act and its implications, if you have any specific questions regarding the Amendments Act, or if you have a situation that you believe may expose your company to liability as of January 1, 2009, please contact any member of the Schiff Hardin Labor and Employment Group.
