On September 25, 2008 President Bush signed into law Amendments to the Americans with Disabilities Act (ADA) which effectively overturn US Supreme Court decisions that had limited the applicability of the ADA to disabled individuals.

The ADA Amendments Act of 2008 (ADAAA or the Act) becomes effective on January 1, 2009. It is expected that the EEOC will issue regulations implementing the provisions of the Act prior to the effective date.

The Supreme Court Decisions

The text of the Act makes clear that Congress’s purpose in enacting the provisions is to “reject” the US Supreme Court’s reasoning and standards enunciated in two cases and their progeny, Sutton v. United Air Lines, Inc., 527 US 471 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 US 184 (2002). In addition, Congress has reiterated its intent for the ADA to provide broader protection of individuals with disabilities from discrimination in employment. As stated in Section 3 of the Act, Congress has mandated that “the definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” See 42 U.S.C. § 12102.

As for the particular court holdings that Congress has taken issue with, in the Sutton decision, the US Supreme Court found that the ADA protected only those individuals whose disabilities could not be “mitigated” by measures such as medication, treatment, assistive devices, or auxiliary aids or services. The Act now removes this requirement for nearly all mitigation measures. In the 2002 Williams decision, the Supreme Court narrowly interpreted the meaning of the requirement that a qualifying disability “substantially limit” the individual’s activities to mean that it must “significantly restrict” such activities. The Act makes clear that such a narrow reading of “substantially limit” will not be allowed under the ADA.

Specific Changes to the ADA

The purpose of the ADA is to protect qualified employees and applicants with disabilities from discrimination by employers. The law requires that employers provide qualified individuals with reasonable accommodations to the extent that such accommodations do not pose an undue hardship on the employer. In addition, the ADA protects individuals who may not be disabled but are discriminated by an employer who regards them as being disabled.

The ADA protects disabled individuals who can establish that: (1) he/she has a physical or mental impairment or has a record of an impairment, (2) the impairment substantially limits a major life activity, and (3) despite the impairment, the individual can perform the essential functions of his/her job with or without reasonable accommodation.

The Act clarifies the meaning of certain components of this test by:

• changing the definition of “substantially limits”
• adding a definition of “major life activities”
• clarifying the role of mitigating measures in determining whether an individual is substantially impaired
• changing the definition of “disability” to include impairments that are episodic or in remission

Specifically, the Act clarifies that an impairment that substantially limits a major life activity “need not limit other major life activities in order to be considered a disability.” The Act also makes a significant change in allowing for an impairment that is “episodic or in remission,” such as cancer, to now qualify as a disability so long as “it would substantially limit a major life activity when active.” ADA now makes clear that there does not need to be a record of an individual’s impairment in order for the individual be to considered disabled, but such a record may be the basis for being deemed disabled under the ADA.

In addition, the Act states that the determination of whether an individual is disabled due to substantial impairment of a major life activity shall be made without regard to any mitigating measures, other than “ordinary eyeglasses or contact lenses.” The Act also now provides a definition of “major life activities,” which goes beyond those activities previously recognized by the Equal Employment Opportunity Commission. The Act’s non-exhaustive list of recognized major life activities includes previously unrecognized activities such as reading, bending, and communicating, as well as major bodily functions such as brain, respiratory, circulatory and reproductive functions.

The Act also clarifies that individuals who are protected because they are “regarded as being disabled” do not have to first establish that their impairments limit or are perceived to limit a major life activity. However, impairments that are “transitory or minor,” which are defined as impairments that have “an actual or expected duration of 6 months or less,” will not qualify as “regarded as” being a disability. In addition, individuals who are regarded as being disabled but are not in fact disabled will not be eligible for reasonable accommodations to the employer’s policies, practices or procedures.

If you are interested in learning more about the ADA and the impact on the workplace of the recently enacted Amendments to the Americans with Disabilities Act, please contact any of the Arent Fox attorneys listed here.