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Legal Updates

The ADAAA Significantly Expands The ADA

President Bush recently signed into law the ADA Amendments Act of 2008 (the “ADAAA”).  The ADAAA, which becomes effective January 1, 2009, amends the Americans with Disabilities Act (the “ADA”) to significantly broaden its protections.

First, the ADAAA provides that whether an individual has a “disability” within the meaning of the ADA is to be determined without consideration of “mitigating measures,” such as medications, hearing aids and mobility devices (but excluding ordinary eyeglasses and contact lenses) that help individuals cope with impairments.  In this regard, the ADAAA expressly overturns a number of U.S. Supreme Court decisions, including Sutton v. United Air Lines, 527 U.S. 516 (1999), holding that mitigating measures should not be taken into account.

Second, the ADAAA invalidates a restrictive Supreme Court interpretation of the ADA and a corresponding regulation of the Equal Employment Opportunity Commission (“EEOC”).  The Supreme Court’s decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interprets the ADA’s requirement that a covered individual be “substantially limited in a major life activity” as mandating that the individual be “significantly restricted” in that activity.  The EEOC has adopted this interpretation in its regulations.  The ADAAA states that this interpretation “has created an inappropriately high level of limitation necessary to obtain coverage under the ADA” and directs the EEOC to revise its regulations to liberalize this standard.  In this regard, the ADAAA further provides that whether an impairment qualifies as a disability “should not demand extensive analysis.”

Third, the measure states than an individual will now satisfy the requirement of “being regarded” as having an impairment under the ADA if the individual is subjected to adverse action because of any perceived physical or mental impairment, whether or not the putative impairment is seen as limiting any major life activity.  The “regarded as” provision, however, will not apply to perceived impairments that are both “transitory” (i.e., with an actual or expected duration of no more than six months) and “minor.”

Fourth, the ADAAA specifies a wide range of specific life activities (including eating, working and concentrating, as well as the operation of any “major bodily function”) that, if substantially limited, will qualify an individual for coverage under the ADA.  Previously, the ADA did not define “major life activity,” leaving it for courts to decide (not always consistently) whether a given action constitutes a major life activity and thus falls within the scope of the statute.

It seems likely that these amendments to the ADA will make it more difficult for employers to prevail in lawsuits and administrative charges under the statute, at least during the early stages of litigation.  Up to now, employers frequently have prevailed on ADA claims by arguing that a plaintiff is not covered by the statute because the plaintiff cannot show that he or she had, or was perceived as having, an impairment that substantially limited a major life activity.  With these changes, courts and agencies can be expected to view this threshold issue much more liberally, and to proceed to the question of whether an employer either made an adverse employment decision on the basis of an actual or perceived impairment or failed to provide a reasonable accommodation for a disability.

In addition, the fact that the ADA may now cover any instance in which an individual is regarded as having a physical or mental impairment (other than ones that are minor and transitory) may lead to a significant increase in the number of “regarded as” lawsuits and charges filed under the statute.  Plaintiffs’ attorneys may attempt to cite isolated or seemingly innocuous comments regarding individuals’ physical or medical conditions as grounds for claims that adverse employment decisions were unlawfully based on perceived impairments, even where it is not clear that any major life activity is implicated.

In light of these changes to the law, employers should review their policies and practices relative to requests for reasonable accommodations.  Some requests that could have been properly denied under the current law will need to be handled differently as of January 1, 2009.

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Please feel free to contact us if you have questions about this new legislation.  We routinely advise employers regarding their obligations under the ADA and similar state laws and would be happy to be of service.