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Legal Alert: The Americans with Disabilities Act Amendments Act of 2008

Mark J. Chumley
September 29, 2008

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) moved easily through Congress with bipartisan support and was signed into law by President Bush on September 25, 2008. The ADAAA will modify the ADA effective January 1, 2009. Although the news media had paid little attention to the ADAAA, it represents a significant change in the law for all employers covered by the ADA. Among other changes, the new law impacts the ADA in the following ways:

Definition of Disability Broadened: One of the strongest defenses used by employers against ADA claims has been the narrow construction of a “disability” under the ADA. However, the ADAAA specifically rejects the Supreme Court decisions that embraced this narrow construction and provides that the term “disability” is to be broadly construed to the maximum extent provided by the ADA and the ADAAA.

Expansion of Major Life Activities: The ADAAA expands the definition of “major life activities” by including two non-exhaustive lists. The first list includes many activities that the EEOC has previously recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating). The second list includes major bodily functions (e.g., functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions).

Substantial Limitation Broadened: The ADAAA condemns courts’ prior narrow interpretations of substantial limitations under the ADA and provides that the courts are to focus on whether covered entities have complied with their obligations under the ADA. Thus, whether an individual has a disability should not “demand extensive analysis.” The ADAAA directs the EEOC to create new regulations defining “substantially limits,” presumably in broader terms than the current regulations.

Mitigating Measures No Longer Considered: The ADAAA provides that mitigating measures (e.g., medication, medical devices or other aids) other than “ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability.” In doing so, the ADAAA rejects a multitude of judicial decisions considering such measures as relevant to the analysis of whether an individual is disabled.

“Regarded As” Analysis Changed: The ADAAA provides that an individual will be deemed “regarded as” having a disability if he “establishes that [he] has been subjected to an action prohibited under this Act 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.” Thus, a perceived limitation that would not in actuality satisfy the ADA definition of disabled could serve as the basis for an ADA claim under the ADAAA. However, individuals that are “regarded as” having a minor or transitory impairment with an actual or expected duration of six months or less do not receive protection under the ADA. Also, the ADAAA clarifies that employers are not required to provide reasonable accommodations to individuals that are only “regarded as” having an impairment.

Episodic Impairments Covered: The ADAAA expands coverage for impairments that are episodic or in remission, providing that an impairment that is episodic or in remission remains a disability even when it is inactive or in remission.

Impact on Employers: The ADAAA significantly expands the scope of ADA coverage. In addition to loosening the standards for what it means to be disabled, the new “regarded as” language opens the door to a whole new class of employees who were not previously covered by the ADA. The ADAAA also weakens if not eliminates some of the strongest defenses to ADA liability enjoyed by employers. Going forward, defenses will likely focus less on the question of whether an employee is disabled and more on questions of reasonable accommodation, non-discriminatory reasons for decision making and pretext analysis. In the workplace, the focus shifts to engaging in the interactive process and determining and managing reasonable accommodations.

In preparation for the January 1, 2009 effective date of the ADAAA, employers should consider taking the following actions:

Review policies and procedures to make sure that dealings with employees and prospective employees with a physical or mental impairments are compliant with the broader ADA requirements. In particular, triggers for engaging in the interactive process with potentially disabled employees need to be examined.

Review policies and procedures to make sure that dealings with prospective employees with a physical or mental impairment of any kind are consistent with the new, broader ADA coverage. Prospective employees with even minor limitations (e.g. thirty pound lifting restriction) are now potentially covered by the ADA.

Review policies and procedures relating to workplace injuries and workers compensation. Previously, most of these situations did not implicate the ADA but the broader disability standards could bring such cases within an ADA analysis.

Train supervisors and managers regarding the ADA, emphasizing that the old approaches no longer apply and that issues relating to potential disabilities must be reviewed carefully with the appropriate member(s) of human resources, management and/or legal teams.

This communication is not intended to be legal advice. Please consult with counsel of your choice with regard to specific questions you may have.

KMK LABOR & EMPLOYMENT GROUP
Paul Dorger
Bob Maxwell
David Montgomery
Mark Chumley
Caroline DiMauro
Cole Bond
Jamie Goetz-Anderson