On September 25, 2008, the Americans with Disabilities Act Amendment Act (ADAAA) was signed into law. It will become effective on January 1, 2009. The ADAAA expands the protections of the original ADA to include more individuals with less severe impairments. It 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. Below are some of the significant changes. This list is not exhaustive.
1. The ADAAA directs a broad interpretation of the definition of “disability.” The ADAAA preserves the ADA’s definition of disability as “having a physical or mental impairment that substantially limits one or more major life activities; having a record of such an impairment; or being regarded as having such an impairment.” However, the ADAAA specifically directs court to reject a restrictive interpretation of the statute. The ADAAA also directs that the determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures, with an exception for corrective measures relating to eyesight.
2. The ADAAA clarifies the definition of “major life activities.” Where the ADA was silent on what constitutes a major life activity, the ADAAA states that major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The ADAAA also adds a list of “major bodily functions” and includes: functions of the immune system, cell growth, digestive, bladder, and bowel functions, neurological and brain functions, respiratory and circulatory functions, endocrine functions, and reproductive functions. Finally, the ADAAA directs that impairments that are episodic or in remission qualify as covered disabilities if they would substantially limit a major life activity when active.
3. The ADAAA directs the EEOC to revise the portion of its regulations that defines the term “substantially limits.” The ADAAA negates the requirement set forth by the courts that a covered impairment “prevent” or “severely restrict” a major life activity. The ADAAA directs the EEOC to issue interpretive guidance that broadens the definition of the term “substantially limits.” The ADAAA specifically states that the holdings of the courts in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 2002 (1999), and Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) created “inappropriately high level of limitation necessary to obtain coverage under the ADA . . .”
4. The ADAAA changes application of the “regarded as” prong of the definition of “disability.” The “regarded as” prong of the definition of “disability” was not previously defined by the ADA. Case law had interpreted “regarded as” to mean that the employee had the burden to prove that his/her employer regarded the employee as having a disability because the employee was viewed as substantially limited in a major life activity. Under the new law, an employee need only prove that he/she was victim of prohibited action because of an actual or perceived impairment, whether or not the impairment limits (or is perceived to limit) a major life activity. In other words, the employee only needs to demonstrate that he/she was viewed as being impaired, whether or not the impairment is actually a protected disability. There are, however, two exceptions to this rule: (1) impairments that are “transitory and minor” (one with an actual or expected duration of six months or less) cannot form the basis of a “regarded as” claim; and (2) employers do not have to provide reasonable accommodations to employees who are “regarded as” disabled, unless those persons satisfy another part of the definition of a disability (i.e., have a physical or mental impairment that substantially limits one or more major life activities or a record of such an impairment).
The new rules significantly impact the legal landscape relating to the application of the ADA. The ADAAA states that the “primary object of attention in cases brought under the ADA should be whether the entities covered under the ADA have complied with their obligation . . . .” Based on this enunciated purpose and the changes made to broaden the umbrella of protection to the disabled working population, employers should focus on ensuring that they are actively and systematically engaged in the interactive accommodation process with respect to any disabled workers.
Keesal, Young & Logan Employment Group