The ADA Amendments Act of 2008--
First Major Overhaul to the ADA Promises New Challenges For Employers

Larry R. Jensen

On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 (“ADAAA”). The ADAAA significantly amends the Americans with Disabilities Act of 1990 (“ADA”), which was signed into law by former President George H.W. Bush.

The original ADA was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” The ADAAA, which becomes effective January 1, 2009, clarifies Congress’ intent to “reinstate a broad scope of protection” available under the ADA and “broadly” construe the definition of “disability” which, according to proponents of the ADAAA, became far too restrictive in determining those individuals covered.

There can be no doubt that the ADAAA significantly expands the definition of “disability” for purposes of ADA coverage, making it far more inclusive. In doing so, the ADAAA specifically reverses several United States Supreme Court rulings. Considering the increased numbers of those that will now be included as “disabled” under the ADA, employers will most certainly be forced to spend more time and resources on compliance. Employers will also be required to defend ADA claims that previously would have been dismissed early in the adversarial process.

Expansion of “Substantially Limits” and “Major Life Activities” Definitions

The definition of “disability” under the ADA remains the same--- a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment. However, notable provisions of the ADAAA significantly expand definitions of terms such as “substantially limits,” “major life activities,” and “being regarded as having such an impairment.”

Under the ADAAA, “substantially limits” means “materially restricts,” and the new law specifically directs the Equal Employment Opportunity Commission (“EEOC”) to promulgate less restrictive rules that would provide broader coverage. In addition, “major life activities” under the new law 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.

Finally, “major life activities” also include the operation of “major bodily functions,” including but not limited to functions of the immune system; normal cell growth; digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

By expanding the definition of “substantially limited,” the ADAAA overturns the Supreme Court’s decision in Toyota Motor Mfg. Co. of Kentucky v. Williams (2002), which held that courts should apply a rigid standard in determining whether an individual with an impairment is “substantially limited” in a major life activity and, therefore, “disabled” under the ADA for purposes of alleging unlawful employment discrimination.

Changes to “Regarded as Disabled” Definition

The ADAAA specifically addresses the “regarded as disabled” prong of the ADA statute. Under the ADAAA, “regarded as having such an impairment” now places in a protected status an individual who has been subjected to a prohibited action 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.” By eliminating the “substantially limited in a major life activity” threshold for “regarded as” claims, the ADAAA greatly expands the scope of the ADA’s protections. Regarded as claims, however, will continue to exclude “transitory and minor” impairments, and Congress clarified this category to include situations where the “actual or expected duration [of the impairment] is six months or less.”

In regard to accommodations, employers are only required to provide reasonable accommodations to those individuals that can demonstrate an actual impairment that substantially limits a major life activity, or have a record of an actual impairment. Employers need not provide accommodations for individuals only “regarded as” having an impairment.

Elimination of the “Mitigating Factors” Defense

Significantly, the determination as to whether an impairment substantially limits a major life activity under the ADA must be determined without regard to any “mitigating factors” such as prescriptive medicines or equipment (except for ordinary eyeglasses or contact lenses) that would improve the effects of the disability.

Subsequent to enactment of the ADA, Supreme Court decisions significantly narrowed the definition of “disability.” Proponents of the ADAAA argued that judicial interpretation of whether an individual has a disability has become so rigid that individuals with health conditions such as epilepsy, muscular dystrophy, cancer, diabetes, and cerebral palsy were falling outside the protections of the ADA due to “mitigating factors.” As of January 1, 2009, the ADAAA effectively eliminates the “mitigating factors” defense.

Congress found the United States Supreme Court’s 1999 rulings in Sutton v. United Airlines, Murphy v. United Parcel Service, and Albertson’s Inc. v. Kirkingburg to be contrary to the original intent of the ADA. In these cases, the Court considered “mitigating measures” that would assist an individual in controlling an impairment in determining whether an individual is “disabled” within the meaning of the ADA. Under the ADAAA, whether an individual has a “disability” must be determined without reference to the ameliorative effects of mitigating measures. Specifically, those mitigating measures include: medication, medical supplies, equipment, or appliances, low-vision devices, prosthetics (including limbs and devices, hearing aids and cochlear or other hearing implants), mobility devices, or oxygen therapy equipment and supplies.

Given the ubiquitousness of lifelong medications for depression, anxiety, hypertension, diabetes, and a plethora of other chronic conditions, reviewing these conditions in their “unmedicated” or “unmitigated” will create a vast new class of persons falling under the category of “disabled” for ADA analysis.
Omitted from the ADAAA’s bar on consideration of mitigating measures are ordinary eyeglasses or contact lenses that fully correct visual acuity or eliminate refractive error. Employees with corrected vision, without more, will continue to fall outside of the ADA’s protections. Qualification standards or tests based on uncorrected vision are not permitted, unless uncorrected vision is shown to be job-related and consistent with business necessity.

Conclusion

Unquestionably, the ADAAA stands to greatly increase the scope of the ADA. With Supreme Court precedent being overturned, and definitions of “disabled” expanding, an increase in litigation is imminent. Employers should be careful in navigating these changes, and work with counsel to implement effective strategies to avoid liability.