The ADA Amendments Act of 2008

The ADA Amendments Act Of 2008

The ADA Amendments Act of 2008 (ADAAA), which took effect on January 1, 2009, substantially broadens the scope of the Americans with Disabilities Act (ADA) by expanding the way in which the definition of “disabled” is to be construed by the courts. The ADAAA effectively overturns two U.S. Supreme Court decisions which had narrowed the ADA’s protections and, in the words of Congress, “created an inappropriately high level of limitation necessary to obtain coverage under the ADA.” As stated in the ADAAA, the amendments were enacted to provide for “broad coverage of individuals under this Act, to the maximum extent permitted by” the ADA.

Under the ADA, a person is considered “disabled” if he or she (1) has a physical or mental impairment which substantially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such impairment. The ADAAA clarifies this definition in several significant ways.

First, under the ADAAA, a determination of whether an individual is substantially limited in one or more major life activities must be made without regard to mitigating measures such as medication, medical equipment, prosthetics, hearing aids, mobility devices, etc. In other words, whether an individual can function without limitation with regard to major life activities through the use of a prosthetic device, for example, is of no consequence. The appropriate inquiry is whether the individual is substantially limited in one or more major life activities without regard to the ameliorative effects of such mitigating measures. In this regard, the ADAAA expressly rejects the Supreme Court’s decision in Sutton v. United Air Lines, Inc., in which the Court held that judges must consider “mitigating factors” in determining whether a person is disabled under the ADA. An exception under the ADAAA allows courts to consider “ordinary eyeglasses or contact lenses” in determining whether a vision impairment will trigger coverage under the ADA.

Second, the definition of “major life activity” is expanded by the ADAAA, which explicitly provides 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. Major life activities also include the operation of a major bodily function, such as normal cell growth and immune, endocrine, bowel, bladder, neurological, digestive, circulatory, respiratory, and reproductive system functions.

Third, the ADAAA expressly rejects the Supreme Court’s holding in Toyota Motor Mfg., Kentucky Inc. v. Williams, in which the Court held that the terms “substantially limits” and “major life activities” should be strictly construed. The ADAAA provides, however, that as a general rule of construction, the term “disabled” is to be construed broadly “to the maximum extent permitted” by the ADA. Additionally, under the ADAAA, even an impairment that is episodic or in remission constitutes a disability under the ADA “if it would substantially limit a major life activity when active.”

Fourth, the ADAAA also rejects the regulations promulgated by the Equal Employment Opportunity Commission (EEOC), which define the term “substantially limits” as “significantly restricted.” The ADAAA provides that this definition is inconsistent with Congressional intent because it imposes too high a standard for protection under the ADA. Unfortunately, however, despite its disagreement with the EEOC regulations, the ADAAA does not provide an alternative definition. Instead, it simply instructs the EEOC to revise the definitions to comport with the ADAAA’s purposes and findings. Thus, some uncertainty is likely to persist until the EEOC and the courts have interpreted the term in accordance with the provisions of the ADAAA.

Finally, the ADAAA provides that an individual meets the “regarded as” prong regardless of whether or not the actual or perceived impairment substantially limits a major life activity. Employers, however, are not required under the amendments to make reasonable accommodations in cases falling under the “regarded as” prong. Furthermore, the regarded as prong will not apply to impairments which are “transitory” or “minor,” i.e. those impairments with an actual or expected duration of six months or less. Therefore, an employee will meet the “regarded as” prong where the employer believes the employee has a non-temporary impairment even if the impairment does not substantially limit a major life activity.

What does this all mean for employers? The ADAAA expands the scope of the ADA and consequently the number of employees that are protected under the ADA. The proliferation of requests for accommodation and lawsuits filed under the ADA is quite likely. Accordingly, employers should review their guidelines to determine whether to provide employees with reasonable accommodations under the ADA in accordance with the ADAAA. Furthermore, employers will likely need to provide additional training to their supervisors to ensure adequate identification of issues under the ADA.