DISABILITIES

ADA Amendments Act sends us 'back to the future'

"I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress have carefully crafted this Act."

President George H.W. Bush spoke those words at the signing of the original Americans with Disabilities Act (ADA) in 1990. Eighteen years later, as his father looked on, President George W. Bush signed landmark legislation that will wipe clean the slate of case law interpreting that "carefully crafted" Act.

The ADA Amendments Act of 2008 (ADAAA), signed into law on September 25, defines key terms of the ADA and clearly returns the Act's broad power and protection to individuals with disabilities. The legislation, which received wide bipartisan support and sailed through the legislative process, is being lauded as an important civil rights measure. But what will the ADAAA mean for employers?

Substantially limiting court's impact

The chief intent of the ADAAA is to expand interpretation of the ADA's coverage, reversing a trend toward narrow construction that began with a string of U.S. Supreme Court decisions starting in 1999. The Act specifically overturns two of those decisions: Sutton v. United Airlines Inc., which limited the ADA's protection for persons whose disabilities could be "mitigated" by measures such as medication, treatment, or assistive devices, and Toyota Motor Manufacturing, Ky, Inc. v. Williams, which tightened the standard for individuals to be considered "substantially limited" by their disability.

Now, under the new ADAAA standard, individuals must still be "substantially limited" by their disabilities, but that phrase must be interpreted consistently with the "findings and purposes" of the ADAAA. Those findings and purposes are a list of general requirements at the beginning of the Act that champion a less demanding standard than the one developed by the U.S. Supreme Court.

Defining 'disability'

An area of much ambiguity in the original ADA, the term "disability" is now significantly expanded by several new rules of construction in the ADAAA. The new law directs that the term "disability" must be interpreted in favor of broad coverage of individuals. Now an impairment that substantially limits one major life activity need not limit other major life activities to be a disability. Further, individuals who suffer from episodic impairments or impairments that are in remission, such as cancer or epilepsy, will still be protected under the Act so long as the impairment would substantially limit a major life activity when active.

Perhaps the most significant change is in response to the Sutton ruling noted above. Now, under the ADAAA's rules of construction, ameliorative effects from medication or treatment are not to be considered when determining whether an individual's impairment qualifies as a disability. Where the Sutton Court required that an individual be assessed in his present condition, the ADAAA preserves the impairment despite assistance of medication, reasonable accommodations, or prosthetics ― essentially any treatment aside from ordinary eyeglasses or contact lenses.

The ADAAA also provides a list of some examples of major life activities, i.e., actions that, when substantially impaired, constitute a protected disability. The extensive list of activities now includes physical tasks such as walking, standing, and lifting, mental tasks such as learning, reading, and thinking, and even the operation of major bodily functions such as immune system functions, cell growth, and reproductive functions. Individuals who can't perform any of the listed activities will automatically qualify as disabled under the revised ADA.

Finally, the ADAAA defines the requirements of being "regarded as" having an impairment. The Act specifies that individuals who are subjected to discrimination prohibited by the ADA, whether or not an actual or perceived impairment limits their major life activities, will still be regarded as having an impairment for purposes of discrimination suits. That means, in most instances, that employees with medical impairments will be able to overcome the initial hurdle of a disability discrimination case and establish that they are disabled.

Bottom line

With the enactment of the ADAAA, we're back to the future. Years of Supreme Court precedent defining what constitutes a disability can be thrown out the window because we're now back to June 21, 1999, the day before the Supreme Court decided the first of a series of ADA cases sharply limiting the definition of disability. Significantly more people will qualify for protection under the revised ADA, which supporters of the bill argue should have been the case all along.

Employers may find themselves spending more time and money on accommodations since a greater number of people will be eligible for them. Yet the law may also benefit employers by providing a clearer standard for when accommodations are required. The new Act removes some of the guesswork and may reduce litigation expenses for employers that had difficulty determining whether their employees were "disabled" under the original ADA.

The focus of ADA litigation will now be on whether the employer failed to reasonably accommodate a disabled employee or took a job action because of the employee's disability, not on whether the employee was actually disabled in the first place. That means you must cover your bases when dealing with employees with medical problems, ensuring that you have performed and documented the reasonable accommodation process. Further, you must carefully document valid, nondisability- related reasons for any job action.

The ADAAA becomes effective January 1, 2009, giving the Equal Employment Opportunity Commission time to update regulations to conform to the new Act. In the meantime, you should revisit your own policies and procedures, understanding that employees who previously may not have qualified for accommodations or satisfied the requirements to file a discrimination suit are heavily favored by the revised ADA.