News
Americans with Disabilities Act Amendments
November, 14 2008
With the enactment in September of the “ADA Amendments Act of 2008,” Congress has attempted to “restore the intent and protections of the ADA.” The amendments become effective January 1, 2009.
The Amendments overrule two United States Supreme Court cases – Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002); expand the definition of disability; expand the list of major life activities; and expand the “regarded as” definition of disabled under the ADA.
Expanded Definition of Disability
Among the most significant impacts of the law is that it will significantly expand the definition of who is disabled under the ADA. Specifically, the law requires a broader definition of disability, forbids considering mitigating measures in determining whether an employee is disabled, and provides that episodic impairments may qualify someone as disabled.
Broad Interpretation of "Disability"
Expanded Definition of Disability
Among the most significant impacts of the law is that it will significantly expand the definition of who is disabled under the ADA. Specifically, the law requires a broader definition of disability, forbids considering mitigating measures in determining whether an employee is disabled, and provides that episodic impairments may qualify someone as disabled.
Broad Interpretation of "Disability"
The ADA defines a disability as a condition that “substantially” limits a “major” life activity. In Toyota Motor Manufacturing, the Supreme Court announced that the terms “substantially” and “major” in the ADA’s definition of disability “need to be interpreted strictly to create a demanding standard for qualifying as disabled” and that an employee must have an impairment that “severely restricts” the individual from performing a major life activity.
The new Amendments state that the definition of disability “should not demand extensive analysis” and that the term “substantially limits” should not be defined such that a condition must significantly restrict or severely restrict a major life activity to be a disability. The Amendments do not, however, express how the term “substantially limits” should be interpreted. Instead, Congress has directed the Equal Employment Opportunity Commission to “revise that portion of its current regulations that defines the term “substantially limits” as “significantly restricted” to be consistent with the Amendments. The EEOC has not yet revised its regulations or published a proposed change.
No Consideration of Mitigating Measures
No Consideration of Mitigating Measures
In Sutton, the Supreme Court upheld the consideration of mitigating or corrective measures, such as prescription medications, in determining whether a mental or physical impairment substantially limited a major life activity. For example, a person who uses a prosthetic device may not be substantially limited in any major life activity while using the prosthetic device, but would be while not using the device. In the example, the person would not be considered disabled under current law.
The Amendments prohibit the consideration of mitigating or corrective measures in determining whether an impairment substantially limits a major life activity. Thus, when considering whether an employee is disabled under the ADA, an employee who has a prosthetic device should be evaluated as if the employee does not have the prosthetic. For example, an employee who uses prescription medications for mental or physical impairments, such as epilepsy or bipolar disorder, must be evaluated without considering the corrective effects of the medications.
The Amendments include one exception to the prohibition on considering mitigating measures. Employers (and evaluating healthcare providers) can consider the corrective effects of eyeglasses and contact lenses.
The Amendments add a new section to the law requiring employers to use an employee’s corrected vision for any qualification standards, employment tests, or other selection criteria unless the employee’s uncorrected vision is shown to be job-related for the position in question and consistent with business necessity.
Episodic Impairments May Qualify as Disabilities
Episodic Impairments May Qualify as Disabilities
The Amendments change prior court decisions by stating that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. This change means courts will have to interpret the ADA based primarily on a hypothetical inquiry.
Expanded List of Major Life Activities
The current version of the ADA does not define major life activity, but the new law adopts an expanded, non-exhaustive list of major life activities that, if substantially impaired, may render the employee "disabled" under the law.
Present EEOC regulations provide that "major life activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The Amendments include that list in the new law, and add the following activities to the non-exhaustive list: eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating.
Expanded List of Major Life Activities
The current version of the ADA does not define major life activity, but the new law adopts an expanded, non-exhaustive list of major life activities that, if substantially impaired, may render the employee "disabled" under the law.
Present EEOC regulations provide that "major life activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. The Amendments include that list in the new law, and add the following activities to the non-exhaustive list: eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating.
Also defined as a major life activity are major bodily functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
The result of these changes is that the more conditions or disorders that may not be considered a disability giving the employee the protection of the current ADA may be considered a disability under the new law.
Expansion of the “Regarded As” Definition of Disability
Expansion of the “Regarded As” Definition of Disability
Under the current version of the ADA and the Amendments, disability is defined as (1) having an impairment that substantially limits one or more major life activities; (2) having a record of such an impairment; or (3) being regarded as having such an impairment.
The third, or “regarded as,” definition of disability protects employees who do not have disabilities but whose employers think they do. The Amendments expand the coverage of the definition for being “regarded as” disabled. Under the new definition, an employee can establish an employer regarded him as disabled if the employer perceived the employee to have an actual or perceived impairment even if the employer did not perceive the impairment to limit a major life activity. The new standard is a substantial departure from prior court decisions interpreting the “regarded as” definition of disability, which required the employer to have regarded the employee as having an impairment to a major life activity.
Impairments that are transitory (lasting six months or less) and minor (which is not defined in the Amendments) are not covered by the “regarded as” definition.
Employees cannot assert a claim for failure to accommodate under this definition of disability, but they can sue their employers for taking an adverse employment action (e.g., discharge, demotion, failure to promote, etc.) based on a perceived impairment. Under the new definition, an employee basically has to prove nothing more than the employer’s perception (regardless of whether the perception is correct) that the employee has an impairment that is not transitory and minor.
Under the new law, it is likely that courts will more often decide that an impaired employee is a qualified individual with a disability. Thus, the interactive process for accommodations and an employer’s legitimate, nondiscriminatory reason for taking an adverse employment action become much more important than under the current version of the Act.
If you have any questions about these changes or about any employment practices, please do not hesitate to contact us.
Gignilliat, Savitz & Bettis, LLP
900 Elmwood Avenue, Suite 100
Columbia, South Carolina 29201
p. 803-799-9311 f. 803-254-6951
firm@gsblaw.net Contact Us
900 Elmwood Avenue, Suite 100
Columbia, South Carolina 29201
p. 803-799-9311 f. 803-254-6951
firm@gsblaw.net Contact Us