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Recent Amendments to the Americans with Disabilities Act

Recent Amendments to the Americans with Disabilities Act

On January 1, 2009, the ADA Amendments Act (“Amendment”) will become effective and expand the scope of the Americans with Disabilities Act (“ADA”) and those persons who are covered under the Act.  The Amendment clarifies the ADA and overturns a number of federal court holdings related to the ADA, including the Supreme Court’s holdings which had narrowed the scope of coverage under the ADA.

The ADA applies to all employers who employee 15 or more individuals in 20 or more work weeks during the current or previous calendar year.  The act prohibits discrimination and protects individuals with a “physical or mental impairment that substantially limits one or more of the major life activities of such individual; has a record of such an impairment; or being regarded as having such an impairment.”  42 U.S.C. 12102.   Pursuant to the ADA, a covered employer shall not discriminate against a qualified individual due to a disability in regard to the employer’s application procedures, hiring, advancement, or discharge of employees, employee compensation, job training, or any other terms, conditions, and privileges of employment.  An employer must also provide reasonable accommodations to a disabled individual who is otherwise qualified to perform, and can perform with the accommodation, the essential functions of his or her job.  To qualify for coverage under the ADA an individual must prove that he or she is disabled within the meaning of the ADA. 

To qualify under the ADA, the employee must prove that he or she has a physical or mental impairment that substantially limits one or more major life activities and that a major life activity is actually limited.  Finally, the employee must establish that he or she can perform the essential functions of his or her job.

The Amendment requires that the Act be construed "in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act." The Amendment specifically requires that the EEOC revise its regulations related to what constitutes “substantially limiting”, which currently is defined as “significantly restricted,” in order to broaden the scope of the ADA.  Many cases that have been dismissed due to the courts finding that a plaintiff’s impairment is substantially limiting because it was not serious enough in nature may now be permitted to proceed under the new Amendment.

The ADA did not previously define specific “major life activities,” the definition of which has been the subject of countless court cases.  The Amendment now provides an extensive list of those tasks that constitute "major life activities," which “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” and “the operation of major bodily function, including but not limited to, functions of the immune system, normal cell growth digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The Amendment also provides that an impairment must only limit one major life activity in order for an individual to be considered disabled under the ADA, and this major life activity need not affect any other life activity, including the individual’s ability to work.  Therefore, an individual may qualify for coverage even if the limitation only affects one aspect of the individual’s day-to-day life.

The Amendment also specifically notes that the ADA protects impairments which are episodic in nature or in remission so long as the impairment would substantially limit a major life activity when it is active.   

Another change to the ADA is when an analysis is done as to whether an impairment substantially limits a major life activity, the Amendment states that the impairment must be analyzed without regard to mitigating measures, such as medication, medical supplies or equipment, prosthetics, assistive technology or behavioral modifications.  The Amendment specifically notes that “ordinary eye glasses or contact lens” may be regarded when analyzing an impairment.  This is a change in the way many courts had used the mitigating measures to determine whether there was a limiting effect by the impairment.

One of the biggest additions to the ADA by the Amendment is when an individual is considered “regarded as” having a disability.   The ADA protects individuals who have an impairment that does not substantially limit a major life activity, if the employer treats the individual as having an impairment that substantially limits a major life activity.   It also protects individuals who have an impairment that limits a major life activity, only because of the perception or attitude of others.  Finally the ADA protects individuals who do not have an impairment at all but are treated as having an impairment that substantially effects a major life activity.   The Amendment has broadened the coverage in “regarded as” case by stating an individual is regarded as if he or she has been subjected to prohibited action due to either an actual or a perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity.   This is a change in the requirement that the employer perceive the impairment to affect a major life activity.  The Amendment does provide that an employer is not required to provide reasonable accommodations to individuals who are only in the “regarded as” category.

The majority of the Amendment provides greater protections to employees at the same time limiting the scope of disputes over the coverage of the ADA.  If you have more than 15 employees you must be familiar with your obligations to those employees who qualify under the ADA and you must know which employees qualify.

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