Effective Jan. 1, 2009, employers with 15 or more employees have a new set of ADA rules to contend with. President Bush signed off on a law significantly amending the ADA in September, greatly changing how employers must handle disabled applicants and employees.
The ADA Amendments Act of 2008 (ADAAA) expands the ADA in a variety of ways. The legislation was a congressional reaction to several pro-employer decisions by the U.S. Supreme Court over the past decade that restricted the scope of the ADA. Indeed, the ADAAA specifically names the decisions it was intended to overrule.
The overall result of the new law is sweeping: Congress made clear that it wants the ADA to be interpreted more broadly by courts—and applied by employers—than it has been previously.
What is a disability?
The amendments broaden the definition of a “disability.” In general, establishing a disability still requires showing a mental or physical impairment that substantially limits one or more major life activities. However, all these terms have been expanded.
For example, the law specifically lists many more major life activities than before. Careful employers should review this list, which now includes more subjective and difficult-to-rebut activities such as “concentrating, thinking, [and] communicating.” It also includes major bodily functions, such as “the immune system,” and “normal cell growth” (meaning cancer), as well as endocrine and reproductive functions.
To be disabled, a person needs only to show that his or her medical condition impairs one major life activity. The result of this change is that many more conditions will qualify under this expanded definition—including conditions about which employers might not be aware.
What is a substantial limitation?
The ADAAA also loosens the phrase “substantially limits.” The Supreme Court twice had ruled this should be interpreted in ways that made it more difficult to establish. The amendments overturn both rulings.
First, employers may no longer consider mitigating or ameliorative measures when determining whether a person is substantially limited. Therefore, for example, if medication prevents symptoms from occurring—so much so that there is no impairment at all—employers must decide whether employees are disabled based on how the condition would affect them even if they did not take their medication. (There is an exception for ordinary eyeglasses or contact lenses, which should still be considered.)
Employees with well-controlled diabetes, for example, would still be disabled under the amendments because the employees would certainly meet the disability definition if they didn’t take medicine.
This change probably means many more people will be able to meet the definition of disabled.
Second, the phrase “substantially limits” no longer requires showing a person was prevented or severely restricted from performing the major life activity. Instead, a much lower standard should be sufficient. This change should make it much easier for people to show they are disabled and claim protection under the ADA.
Who is ‘regarded as’ disabled?
The amendments also expand the alternative definition of disability that protects people who are “regarded as” being disabled.
Employees are protected from discrimination simply because they are regarded as being impaired, whether or not the impairment substantially limits a major life activity. Because this protection extends to people who are not actually disabled, there is no duty to provide a reasonable accommodation to such individuals. Short-term impairments (of less than six months) are not sufficient to meet the “regarded as” provision.
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