LABOR AND EMPLOYMENT LAW ALERT

October 7, 2008

CONGRESS AMENDS AMERICANS WITH DISABILITIES ACT

On September 26, 2008, President Bush signed into law the ADA Amendments Act of 2008 ("ADAAA").  The ADAAA are a significant change to the ADA, designed to reverse rulings handed down by the courts that Congress believed had limited the ADA in ways that were not intended when that landmark legislation was passed.

Perhaps the most important change is the broadening of the scope of whether someone is "disabled."  The Supreme Court had held that to be "substantially limited" from performing major life activities required that the person be "severely restricted."  The EEOC in its regulations had similarly required that the individual be "significantly restricted."  The ADAAA provides that "substantially limited" does not require that the restriction be "significant" or " severe."  Instead, it must only be a substantial limitation.

The ADAAA also overturned the Supreme Court's holding that a person with disabilities was not eligible under the ADA if his or her conditions could be mitigated by medication, assistive technology and equipment (such as prosthetics or hearing aids), or learned behavior adaptations.  Now, those mitigating measures will not make one ineligible under the ADA.

The ADAAA also attempts, for the first time, to list some "major life activities."  Among those now listed are caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.  It also lists what are "major bodily functions," to include the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

The "regarded as" disabled provision of the ADA has also been significantly broadened.  An individual must now only have to show that the employer perceived him or her as having a mental or physical impairment, whether or not that impairment limits or is perceived to limit a major life activity.

For employers, there are both short and long term changes that must be made because of the passage of the ADAAA.  In the short term, most employers will need to have their ADA policies (often contained in employee handbooks) amended to reflect the changes in the laws.  In the long term, employers will have to be prepared to engage in the interactive process, and make reasonable accommodations, to a broader range of employees or fact potential ADA liability.

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