Effective January 1, 2009, the Americans with Disabilities Act Amendments Act of 2008 (the “Amended Act”) will change the way employers must provide accommodations for people with disabilities. The Amended Act was passed by Congress for the purpose of providing a clear and comprehensive national mandate for the elimination of discrimination and clear, strong, consistent, enforceable standards addressing discrimination by reinstating a broad scope of protections available under the ADA. In other words, the Amended Act is intended to clarify the ADA and also to reject a number of Supreme Court decisions and portions of ADA regulations that Congress apparently believes weakened the ADA’s effect. The following is a summary of the Amended Act to help you prepare for the effects of this legislation.

Broader Meaning of “Disability”

In determining what constitutes a “disability,” courts are now required to construe the term to the “maximum extent permitted” under the law. This means that the definition of “disability” now includes any impairment that is episodic or in remission. For example, a condition like cancer, even if in remission and not currently causing impairment to the individual, would still be considered a disability, provided that it would substantially limit a major life activity when “active.” Thus, this amendment may significantly increase the number of employees who will be considered disabled for purposes of the ADA.

Mitigating Measures Not Considered
Under a previous Supreme Court decision in determining whether a person was disabled, physical and mental impairments were considered in light of “mitigating measures,” such as medications or corrective devices (e.g., hearing aids or prosthetics). Now, under the Amended Act, these measures may not be taken into account, unless they are eyeglasses or contact lenses. Therefore, employers must now consider whether a person’s impairment would constitute a disability without the use of medication or other corrective devices. Employees who suffer from asthma, diabetes or similar impairments, that can be controlled by medication, will now be protected under the ADA, where previously they were not.

Expansion of “Major Life Activities”

In order to constitute a disability, an impairment must “substantially limit one or more major life activities.” Under the Amended Act, there is now a specific list of major life activities, where there was not before, which includes: caring for oneself, performing manual tasks, seeing, hearing, breathing, lifting, bending, learning, reading, concentrating, thinking, communicating and working. The list also now includes “any major bodily function” and, more specifically, provides coverage for immune system, normal cell growth, digestive, bowel, bladder and reproductive functions, as well as any other bodily function.

Rejection of “Substantial Limitation” Standard

Previously, the Supreme Court has had a rather stringent interpretation of “substantially limits a major life activity.” It had interpreted this to mean that the impairment must prevent or severely restrict an activity of central importance to the individual’s daily life. The Amended Act rejects this standard, requiring instead that the EEOC define “substantially limits,” which will undoubtedly result in a lower standard.

Extension of Coverage for Those “Regarded As” Disabled

The ADA applies not only to employees who have disabilities, but also to those that are “regarded as” having a disability. Originally under the ADA, an individual had to prove that the employer regarded him as being substantially limited in a major life activity, which was difficult to do. Under the Amended Act, the individual only has to show that the employer perceived the individual as having a mental or physical impairment, regardless of whether the impairment substantially limits, or is perceived to limit, a major life activity.

Pro-Employer Clarifications

Pursuant to the Amended Act, employee’s claims that they are “regarded as” disabled may not be based on impairments that are minor or transitory (i.e. expected to last less than six months). Additionally, it provides that employers are not required to provide reasonable accommodations for employees who are “regarded as” disabled.

Finally, the Amended Act prohibits reverse-discrimination claims – discrimination claims by non-disabled employees if a disabled employee is favored in an employment decision.

If you would like to discuss how these changes affect you or your business, or for a fuller description of the changes in the Americans with Disabilities Act please contact:

Seth P. Briskin, Esq.
28601 Chagrin Blvd., Ste. 500
Cleveland, Ohio 44122
(216) 831-0042