New Changes To The ADA Take Effect January 1, 2009

Volume 7, Issue 9
October 22, 2008

On September 25, 2008, President Bush signed the ADA Amendments Act which significantly broadens the application of the ADA and reverses several employer-friendly United States Supreme Court rulings which restricted the statute's application. These changes go into effect on January 1, 2009. The most significant change to the ADA is the expansion of the definition of "disability." The amendments now mandate that courts, government agencies and employers broadly construe the definition of disability "to the maximum extent permitted by the terms of this Act." Previously, courts had interpreted the definition of disability more narrowly, focusing on the nature and severity of an individual's impairment. In so doing, the U. S. Supreme Court held that mitigating measures (i.e., medication, assistive devices) could be taken into consideration to assess whether a person was "substantially limited" in performing one or more major life activities. Now, however, the changes to the ADA expressly state that employers and courts must ignore the effects such mitigating measures have on an individual's impairment. As such, employers can no longer consider whether medications, prosthetics, hearing aids, mobility devices, and learned adaptations impact an employee's ability to perform major life activities. Employers are still permitted to consider ordinary eyeglasses and contact lenses. As a result of this particular change, there will be a significantly higher number of employees who will now be protected as disabled under the ADA, regardless of how well medication and other measures control or improve their impairment. The amendments also broaden the definition of "major life activity" to now include the operation ofany major bodily function, including the immune system, cell growth, digestion, reproduction, respiration, and neurological and brain functions. While an employee must still prove that he or she is substantially limited in a major life activity, the amendments require the EEOC to formulate a definition of "substantially limited" that is less burdensome on employees. Another significant change to the ADA can be found in the definition of who is "regarded as" disabled. Previously, employees had to prove that their employer regarded them as being substantially limited in a major life activity. This often difficult burden has been substantially eased. Now, employees need only prove that that their employer perceived them as having a mental or physical impairment, even if it is not substantially limiting. Exclusions are made for impairments which are minor and "transitory" (defined as lasting 6 months or less). These changes to the ADA necessarily widen its scope of coverage for employees. As a result, employers should be prepared for an increase in ADA claims and requests for reasonable accommodation, particularly as the bounds of the amendments are tested. Scott M. Abbott will address the ADA Amendments Act in greater detail during KZA's upcoming Labor & Employment Seminar on October 24, 2008. We hope to see you there!

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.