ADA Amendments Act of 2008 – September 26, 2008

President Bush has signed into law amendments to the Americans with Disabilities Act (“ADA”) that will significantly expand the protections provided to disabled individuals. The new law, entitled the ADA Amendments Act of 2008 (“ADAAA”), overturns several Supreme Court decisions interpreting the definition of “disability” and will make disposing of ADA cases prior to trial more challenging for employers. The changes to the ADA take effect on January 1, 2009.

The new legislation directs the EEOC to draft new regulations requiring a less demanding standard for an individual to establish a substantially limiting physical or mental impairment under the ADA. In addition, Congress explicitly enlarged the class of individuals the ADA is intended to protect, thus eliminating the historical basis which has been cited by the Supreme Court for narrowly construing the definition of “disability” under the ADA.

Under the ADAAA the term disability shall be construed in favor of broad coverage of individuals. An impairment that is episodic or in remission will now be considered a disability if it would substantially limit a major life activity when active. The ADAAA’s congressional findings and purposes state the EEOC’s existing regulations interpreting the term “substantially limits” are “inconsistent with congressional intent, by expressing too high a standard”. It is unclear how the EEOC standards will be revised, but it will certainly be an easier standard to meet and therefore will complicate ADA litigation against an employer.

The ADAAA also prevents courts and employers from considering mitigating measures an individual may be using when determining whether the individual is disabled. The only exceptions are ordinary eyeglasses and contact lenses. Further, the amendment lowers the standard to prove an employer discriminated against an individual whom it “regarded as” having a disability. The ADAAA clarifies that “regarded as” claims cannot be based on transitory and minor impairments where the impairment is expected to last less than six months. Also, employers are not required to provide a reasonable accommodation to individuals who are regarded as disabled.

Litigation under the ADA is expected now to shift toward questions of whether employers have complied with the law. In the future employers may be litigating issues such as the meaning of “reasonable accommodation,” “undue hardship” and “essential job functions” to establish compliance with ADA obligations.

Employers need to review existing procedures for ADA compliance at every stage, including hiring, medical testing, accommodation, leave and termination. Employers should review job descriptions and should use flexibility in their policies and practices to meet the higher standard for reasonable accommodations. Supervisors should be trained to handle issues posed by injuries or illnesses in the workplace. Employers also should consider using a formal process for addressing requests for a reasonable accommodation if such procedures are not already in place. All employers need to be ready for increased focus and enforcement on the ADA after January 1, 2009.