ADA
AMENDMENTS ACT OF 2008
TO
BECOME EFFECTIVE IN JANUARY 2009
On January 1, 2009, the ADA Amendments Act of 2008
(Amendments Act), which was recently passed by Congress, becomes
effective. The Amendments Act
will expand coverage for individuals who have been excluded from the scope
of protection as a result of several US Supreme Court cases which
effectively narrowed the definition of disability under the Americans
with Disabilities Act of 1990 (ADA).
In general, Congress expects the courts to now apply a less
demanding standard when interpreting the ADA's coverage and to focus
on "whether entities covered under the ADA have complied with
their obligations" in determining whether disability
discrimination has occurred.
The ADA was intended to "provide a clear and
comprehensive national mandate for the elimination of discrimination
against individuals with disabilities." The Amendments Act restores the
intent of the ADA by reinstating the broad scope of the protections
available under the ADA.
Indeed, the Amendments Act states that the "definition of
disability shall be construed in favor of broad coverage"
and "to the maximum extent permitted under the Act." This is accomplished through
several pronouncements.
The Amendments Act requires the EEOC
to revise its current definition of the term "substantially limits"
to be consistent with the broad, less restrictive coverage of the
Amendments Act. The Amendments
Act states that the EEOC's current
definition of "substantially limits," which states that an
individual must be "significantly
restricted as to the condition, manner or duration under which an
individual can perform a particular major life activity" as
compared to the average person, is inconsistent with the ADA.
The Amendments Act also expands coverage by broadening the
definition of "major life activities" to include
"major bodily functions."
Major bodily functions "includes the operation of a major
bodily function, including but not limited to, functions of the
immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions."
The comments from at least one Congressman indicate that
the expanded definition of "major life activities" covers
individuals with neurological disorders that oftentimes plague
individuals with learning disabilities such as dyslexia.
The Amendments Act also expands the term
"substantially limits" to include those impairments that
are episodic or in remission so long as they substantially limit a
major life activity when active.
This may expand coverage to include those individuals with
ailments such as asthma or allergies.
Finally, the Amendments Act does away with mitigating
measures as an indicator for determining an impairment of a major
life activity. This
effectively overturns several Supreme Court decisions, including Sutton
v. United Air Lines, 527 U.S. 184, 9 AD Cases 673 (1999), in
which the court held that "mitigating measures" that help
individuals control or cope with impairments must be considered in
determining whether an individual is disabled within the meaning of
the ADA.
The Amendments Act contains sweeping and far-reaching
changes to the ADA, which are sure to create new issues in the
workplace. It is imperative
that companies examine their current policies and practices relating
to individuals with disabilities to ensure that they are consistent
with the Amendments Act.
If you have any questions concerning the ADA Amendments
Act, please contact David Cessante at 313-965-8574 or dcessante@clarkhill.com or Maria Fracassa Dwyer at 248-988-5899 or mdwyer@clarkhill.com.
