by Rick Kugler

Introduction

On January 1, 2009 the Americans with Disabilities Act Amendments Act (ADAAA) of 2008 went into effect. The ADA Act of 1990 was enacted to protect individuals with disabilities from discrimination. Title 1 of the ADA prohibits employers (defined by having 15 or more employees) from discriminating against applicants and employees who are substantially limited in one or more major life activities due to physical or mental impairment. It also protects individuals who have a record of and/or who are regarded as having such an impairment. The ADA also requires employers to provide workplace adjustments, referred to as "reasonable accommodations", so that "qualified" workers with disabilities can participate fully in the workplace.

However, since the passage of the ADA in 1990, legal decisions have narrowed the scope of the ADA, gradually reducing the protections originally intended by the Act. The 2008 amendments were enacted by Congress to "... restore the intent and protections of the Americans with Disabilities Act..."

What's New...

Broadened interpretation of disability:

The ADA Amendments Act (ADAAA) of 2008 broadens the scope of impairments that will be covered, thereby protecting a greater number of people. First, what constitutes a "major life activity" now includes a wide range of bodily functions such as the immune, reproductive and circulatory systems. Second, impairments that are either episodic in nature or are in remission will be considered "disabilities" as long as they would be considered substantially limiting if they become exacerbated or active.

What makes a disability "substantially limiting"

Under the new law, the Equal Employment Opportunities Commission (EEOC) will also be required to revise the regulations that establish the standard of "substantial limitation." The intent of these changes is to decrease the standard for "substantial limitation", reducing the degree to which a person's impairment must disrupt one or more major life activities, in order for the individual to receive subsequent protection under the Act. This is an important change, since past litigation that has worked against people with disabilities has often involved the plaintive with the disability not being able to prove that they were "disabled enough" to meet the standard. For example, in the case of Littleton v. Wal-Mart a young man with mental retardation who was receiving disability benefits "... failed to create a genuine issue of material fact that he was substantially limited..." according to the court; he therefore lost his case. The EEOC's revision of these regulations is still pending.

The Consideration of Mitigating Measures

Another change resulting from the 2008 amendments involves the consideration of "mitigating measures" when determining if a worker meets the standard of disability. There were a few landmark cases (e.g. Murphy v. UPS) where the courts found that the use medication, treatment and/or prosthetics to be effective in reducing (or mitigating) the impairment in such a way that it did not meet the standard of "substantially limiting." The new ADAAA bars the consideration of mitigating measure - except for ordinary eyeglasses/contact lenses-in determining whether one is considered disabled under the ADA.

"Regarded as" having a disability

The Amendments also have increased protection for people who may not actually have a disability, but are regarded as such. This means that people with perceived (or actual) disabilities who have been subjected to actions prohibited by the ADA (e.g. discrimination in hiring) will also be "regarded as" having a disability and will subsequently be protected under the ADA. This will not include impairments that are transitory (lasting less than six months) or minor in nature Additionally, people who fall under the "regarded as" category are not entitled to a reasonable accommodation by their employer.

Stay Tuned...

The ADAAA does not substantially change the basic provisions of the original ADA. The three-prong definition of disability ---having, a record of having or being regarded as having a physical or mental impairment substantially limiting one or more major life activities-is still applicable, as employers continue to have the responsibility to negotiate reasonable accommodations for people with disabilities at any point during the employment process. The amendments to this act, however, change the way its terms are defined and interpreted, thereby creating criteria that is less restrictive which should serve to protect a greater number of people who experience disabilities. The EEOC will be developing guides and publications which will serve to clarify the ADAAA. To keep abreast of these, check out http://www.ada.gov/ or go directly to the EEOC's website at www.eeoc.gov/types/ada.html.