President Bush has signed into law the ADA Amendments Act (ADAAA), which will go into effect on January 1, 2009. The amendments expand the definition of disability under the ADA by expressly rejecting U.S. Supreme Court case law and Equal Employment Opportunity Commission (EEOC) regulations that limited the definition of disability. The ADAAA explains that the law should be construed "in favor of broad coverage of individuals under the ADA."
The ADAAA expands the definition of disability in a number of ways:
Excluding Consideration of Mitigating Measures. The law explains that one cannot consider mitigating measures (e.g., medicine, hearing aids, prosthetics, etc) in determining whether an individual is "disabled" under the ADA. The only exception to this provision is ordinary eyeglasses or contact lenses, which should be taken into account. This provision overturns the Supreme Court's ruling in Sutton v. United Airlines, where the Court held that employees should be evaluated with consideration of mitigating measures.
Revising the "Regarded As" Definition and Employers' Duties. The ADAAA expands the definition of disability by revising the "regarded as" standard. The law explains that an employee will be deemed to be "regarded as" disabled if the employer regards the employee as having an impairment but not necessarily one that substantially limits a major life activity. No longer must an employee show that the employer regarded the employee as having "an impairment that substantially limits a major life activity."
However, the ADAAA clarifies that impairments that are minor and transitory (i.e., expected to last less than six months) cannot be the basis of a "regarded as" claim of disability.
Furthermore, the law clarifies that employers have no duty to reasonably accommodate an employee who has a "regarded as" disability. This resolves a dispute between the courts on whether employers are required to accommodate employees who are "regarded as" disabled.
Expanding the Definition of Major Life Activities. The ADAAA expands the definition of major life activities. The law details examples of major life activities such as eating, sleeping, lifting, bending, thinking, communicating and working. Additionally, the law explains that a major life activity also includes the operation of a major bodily system, such as the immune, circulatory and reproductive systems. The law rejects Supreme Court case law that held that major life activities are only those that are of "central importance to most people's daily lives."
Moreover, the law reiterates that the impairment need only substantially limit one major life activity to be considered a disability.
Protecting Individuals With Episodic Impairments. The ADAAA explains that an individual who has an impairment that is episodic or in remission is considered disabled provided that the impairment would substantially limit a major life activity when active.
Rejecting the EEOC's Definition of "Substantially Limits." The ADAAA rejects the EEOC's definition of "substantially limits" as "significantly restricted" and directs the EEOC to revise its regulation. Similarly, the law rejects the Supreme Court's interpretation of "substantially," explaining that the interpretation has been too strict and demanding.
Limiting Employers' Ability to Test Employees' Uncorrected Vision. The ADAAA limits employers' ability to use employment tests or criteria based on an individual's uncorrected vision, unless the test or criteria is job-related and consistent with business necessity.
Reiterating That Non-Disabled Employees Cannot Sue for Reverse Discrimination. Finally, the ADAAA states that reverse discrimination claims are not actionable. Thus, non-disabled individuals cannot claim discrimination because they are not given the same accommodations.
Impact on Employers
California employers already must comply with the Fair Employment and Housing Act disability discrimination provisions that are stricter than the ADA and the new amendments. Thus, the changes brought on by the ADAAA will likely have little immediate impact on California employers. However, as is often the case when federal law is modified, the plaintiff's bar and state legislatures may push for even greater protections under state law.
Employers outside of California will see a large increase in the numbers of individuals who are considered disabled under the ADA. Employers should review their disability and reasonable accommodation policies and ensure that managers are properly trained on their obligations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
