Amendments to ADA Expand Coverage

On September 25, 2008, President George Bush signed into law a bill amending the federal Americans with Disabilities Act of 1990 (ADA). The ADA Amendments Act of 2008 (ADA Amendments), which had strong bipartisan support, became effective on January 1, 2009.

The ADA Amendments change the law in significant ways. For employers, they will have a broad impact on how employee disability and accommodation issues must be handled.

As a result of the amendments, more individuals with less severe impairments will be considered to have a disability and, therefore, will be entitled to the protections of the ADA. The amendments will also create new uncertainty regarding what the law requires. In some cases, actions by employers that were generally accepted to be lawful will now be unlawful.

The stated purpose of the ADA Amendments is to "restore the intent and protections" of the ADA. The amendments explicitly reject a series of decisions by the United States Supreme Court, including Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing. Kentucky, Inc. v. Williams. (See sidebar, "ADA Amendments Act Overrules Prior Supreme Court Decisions on What Constitutes a Disability.") Congress objected to the manner in which the Supreme Court interpreted and applied the definition of "disability" in those cases, saying in the ADA Amendments that Sutton and its companion cases had "narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect."

More Health Conditions Encompassed

The ADA defines "disability" to mean, with respect to an individual: (1) "a physical or mental impairment that substantially limits one or more of the major life activities of such individual"; (2) "a record of such an impairment"; or (3) "being regarded as having such an impairment." Courts have narrowly construed that definition, particularly with regard to what constitutes a substantial limitation, a major life activity, and a perceived disability.

The ADA Amendments did not change the wording of this definition. Instead, they added new provisions that have the effect of expanding the definition to encompass more health conditions. The amendments require that the definition of disability, including the meaning of the term "substantially limits," be construed by the courts in favor of broad coverage of individuals. Other important changes are summarized below.

EEOC Regulations. The amendments express Congress's "expectation" that the Equal Employment Opportunity Commission revise the definition of "substantially limits" in its regulations to be consistent with the goals of the ADA Amendments (that is, to provide broad coverage). The current regulation defines the term to mean "significantly restricted," and Congress apparently seeks a more inclusive definition.

Major Life Activity. The ADA Amendments expressly define major life activities to include such activities as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. They also add new language stating that the operation of "major bodily functions" is a major life activity. As defined in the law, major bodily functions include, without limitation, "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." According to this significant change, the actual effect of an impairment of a bodily system on a person's activities is no longer relevant.

Inactive Impairments. Even if an impairment is episodic or in remission, the impairment is considered to be a disability if it would substantially limit a major life activity when active.

Mitigating Measures. Directly contrary to established law, the ADA Amendments provide that the determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures, such as medication, hearing aids, prosthetic limbs, mobility devices or oxygen therapy equipment and supplies. Mitigating measures that must be disregarded in the determination of a disability also include "low-vision devices," but not ordinary eyeglasses or contact lenses, which may still be taken into account. Notably, mitigating measures also include reasonable accommodations as well as "learned behavioral or adaptive neurological modifications," a potentially broad and ambiguous component of the definition.

Perceived Disability. The amendments provide that a person qualifies as being "regarded as" disabled if the person establishes that he or she was subjected to a prohibited action because of an actual or perceived physical or mental impairment, without regard to whether the impairment actually limits or is perceived to limit a major life activity. This significant change means that an impairment that does not satisfy the standard of a current, actual disability might meet the criteria for a perceived disability. This change is likely to increase the number of "regarded as" disability discrimination claims. However, impairments that are both "transitory and minor" (emphasis added) cannot form the basis of a "regarded as" claim. "Transitory" is defined in the ADA Amendments as having an actual or expected duration of six months or less. (The amendments do not address whether transitory and minor impairments may be disregarded under the other two prongs of the ADA's definition of disability.) Also, the legislation makes clear that employers need not provide reasonable accommodations to individuals who are "regarded as" disabled, unless those individuals also satisfy another part of the disability definition.

Vision Standards. The use of qualification standards, employment tests or other selection criteria based on uncorrected vision is prohibited unless such selection criteria are shown to be "job-related for the position in question and consistent with business necessity."

Reverse Discrimination. The legislation makes clear that there is no cause of action for alleged discrimination based on a lack of disability. In other words, a claim of reverse discrimination is not available under the ADA.

Increased Litigation Likely

Despite the stated intention of Congress to increase the number of people covered by the ADA, the ADA Amendments provide no clear guidance about what the key definition of "substantially limits" should be. Moreover, the amendments' repudiation of leading Supreme Court cases in this area means the substantial body of case law that has developed over 15 years will no longer be a reliable guide to employers' obligations and that employers sued for alleged ADA violations will have a much harder time obtaining summary judgment. As a result, we are likely to enter a period of increased litigation while courts, the EEOC and employers sort out the new parameters of ADA coverage.

Employers Must Consider Expanded Scope

With passage of the ADA Amendments, it is clear that employers and their lawyers will have to change how they analyze potential disabilities. Consider two examples:

• An employee has diabetes that has been successfully controlled by insulin. Under pre-2009 interpretations of the law, the employee may not have been covered by the ADA because his diabetes did not affect his ability to carry out activities of normal everyday life. Under the ADA Amendments, this employee probably is covered by the ADA because if he does not take insulin there would be a substantial limitation on the operation of his endocrine system.
• An employee's multiple sclerosis (MS) has been in remission for a number of years and she can engage in normal activities without limitation. Under pre-2009 law, the employee might not have had a disability. Under the ADA Amendments, this employee probably has a disability because active MS could substantially limit the operation of her neurological system. The ADA Amendments offer no guidance about how to predict how severe hypothetical relapses would have to be in order to qualify as a disability.

Because of the uncertainty caused by the ADA Amendments, employers must be especially careful to consider the expanded scope of disability coverage when evaluating employees' requests for reasonable accommodation or when contemplating an adverse employment action against any employee who may have a disability under the new standards.

With the ADA Amendments in effect, employers should be sure to train managers and human resources personnel who are on the front line of employee disability and accommodation issues. In addition, employers should review handbooks, procedures for evaluating requests for reasonable accommodation, and other policies to confirm that they are consistent with the new standards established by the ADA Amendments.