The ADA Amendments Act of 2008

On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (the “Act”). The Act makes important changes to the definition of “disability” by rejecting the holdings of several  Supreme Court decisions and portions of the EEOC’s  Americans with Disability Act’s regulations. This new law clarifies and broadens the definition of disability, and expands the population eligible for protections under the Americans with Disabilities Act of 1990 (“ADA”). The amendments provided in the Act are effective on January 1, 2009.

The Act provides that the definition of disability should be construed in favor of board coverage of individuals under the ADA, to the maximum extent permitted by the terms of the ADA.  The Act does retain the ADA’s existing definition of “disability, ” but amends the ADA to further define and clarify three critical terms within the existing definition of disability (“substantially limits,” “major life activities,” and “regarded as” having such impairment. The Act also adds several standards that must be applied when considering the construction of the definition. By boarding the definition of “disability, more ADA cases will be passing the initial threshold tests.  Employers will be finding that more employees will be covered by the ADA and should be making employment decisions with that assumption in mind.

Until the passage of the Act, the ADA was silent on what was a major life activity. The Act expands the definition of “major life activities” found by the courts and in the Equal Employment Opportunity Commission (“EEOC”) regulations by including two non-exhaust lists:

• the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that the 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).

ADA provides that a physical or mental impairment must “substantially limit” one or more major life activities. The Act includes a number of new provisions that loosen this requirement:

• The Supreme Court’s requirement that the word “substantially” be interpreted strictly to create a demanding standard for individuals seeking to qualify as disabled has now been rejected.
• The Supreme Court’s rule that the word “substantially” be read to mean “prevents or severely restricts” has now been rejected.
• The degree of impairment required for protection under the ADA is now substantially reduced.
• An impairment that substantially limits one major life activity need not limit other major life activities to be considered a disability.
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when it is active.
• The determination of whether an impairment substantially limits a major life activity is made without regard to the ameliorative effects of mitigating measures such as medication, prosthetics, hearing aids, mobility devices, and oxygen therapy equipment.
• There is an important exception to the above rule-it provides that the ameliorative effects of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

The ADA prohibits discrimination against any individual who is “being regarded as” having a disability. In the past, an individual claiming that he or she was “regarded as” having a disability had to prove that an employer regarded him or her as being substantially limited in a major life activity. The Act has eliminated this burden of proof by providing that an individual may be unlawfully regarded as having a disability “whether or not the impairment limits or is perceived to limit a major life activity.”

The Act provides that transitory and minor impairments which have an actual or expected duration of less than six months will not be considered disabilities under the “regarded as” prong of the definition of disability. The Act also provides that an employer is not required to provide a reasonable accommodation or make reasonable modifications to policies, practices, or procedures for an individual who meets the “regarded as” prong of the definition of disability.

The EEOC will be revising its regulations to take into consideration the change made to the ADA by the Act.