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eTrends - Major Changes to The Americans with Disabilities Act Passed

03.24.2009

Introduction

The U.S. Congress passed major amendments to the Americans with Disabilities Act (“ADA”) this Fall, which will be effective January 1, 2009.  These amendments, known as the ADA Amendments Act of 2008 (“ADA Amendments”), were the result of work over the course of a year between business groups and civil rights activists alike.  The ADA Amendments continue to provide protection to American workers in a workplace of 15 or more employees who have; who had; or who are regarded as having a physical or mental impairment that substantially limits one or more major life activities.  However, the ADA Amendments also expands the ADA’s protection by overturning four United States Supreme Court cases that had narrowed the ADA’s coverage over the past decade—as evidenced by the fact that, since those cases were issued, plaintiffs have lost over 90% of trials on ADA employment discrimination claims.  Supporters of the new law believe that the ADA Amendments will give disabled Americans the protection that Congress intended with the passage of the ADA in 1990.

The changes brought by the ADA Amendments are significant to employers.  For instance, the ADA Amendments greatly expands the kinds of medical conditions that will be considered a “disability” under the ADA and relaxes the standard for determining whether an individual is “substantially limited” in a major life activity.  As a result, the ADA Amendments will likely increase the number of circumstances in which an employer must reasonably accommodate a disability.  It is recommended that employers undertake a thorough review of their policies and practices to address this expanded obligation and ensure that all managers and supervisors are properly trained. 

Key provisions of the ADA Amendments Act of 2008

  • Expanded list of examples of “major life activities”

Individuals who are entitled to protection under the ADA are those who have, had, or are regarded as having a physical or mental impairment that substantially limits one or more major life activities.  The ADA Amendments expands the list of what the Equal Employment Opportunity Commission (“EEOC”) considers “major life activities.”  Specifically, the following examples have been added:

    • eating,
    • sleeping,
    • bending,
    • reading,
    • concentrating,
    • thinking,
    • communicating, and
    • the operation of major bodily functions.  “Major bodily functions” includes the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Thus, individuals who previously were denied coverage under the ADA now may be entitled to ADA.  Employers would be well-advised to train their supervisors and managers on how to properly identify a disability under this expanded definition.

  • Coverage for impairments that are episodic or in remission

The ADA Amendments clarifies that an employee may be considered disabled if he or she suffers from an impairment that is episodic or in remission but that “would substantially limit a major life activity when active.”

  • No “mitigating factors” to be considered in determining coverage

The ADA Amendments expressly overrules the Supreme Court case, Sutton v. United Air Lines, by prohibiting employers from considering whether an employee could take mitigating measure to alleviate the impairment in determining whether he or she is disabled.  Thus, an individual who has successfully managed his or her impairments now may be considered covered by the ADA.  This provision is not intended to include individuals who wear ordinary eyeglasses or contact lenses for vision correction.

  • Relaxed standard for determining whether an individual is “substantially limited” in a major life activity

The EEOC has been tasked with revising its regulations with regard to the standard for determining whether an impairment “substantially limits” a major life activity.  Pursuant to the ADA Amendment’s congressional findings, this standard should be relaxed so that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”  The ADA Amendments overrule the limited definition of “major life activity” given in the 2002 U.S. Supreme Court case, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams.

  • Relaxed standard for determining whether an individual is “regard as” having a disability

Before the ADA Amendments were adopted, an employee claiming that he or she was “regarded as” having an impairment could only establish a claim of discrimination by showing that the employer regarded him or her as having an impairment that substantially limits a major life activity.  Under the new law, however, an employee must simply show that the employer perceives that he or she suffers from the impairment—regardless of whether the impairment actually limits or is perceived to limit a major life activity.        

  • Exclusion of “transitory impairment” for “regarded as” claims of discrimination

The ADA Amendments clarify that employees cannot base their “regarded as” claims of discrimination on “minor and transitory impairments” where the impairment is expected to last less than six months.  

  • No obligation to accommodate individual who is only “regarded as” having an impairment

Under the ADA Amendments, employers are not required to provide a reasonable accommodation to employees who make a discrimination claim under the “regarded as” provisions—an issue which had previously caused some confusion in federal courts.

Action items for employers

Employers would be well-advised to take the following steps to ensure that their policies and practices comply with the new requirements under the ADA Amendments:  

  • Train all managers and supervisors on the new obligations and the expended scope of conditions that will qualify as a covered disability;
  • Review the internal process for employers to identify disabilities that may require a reasonable accommodation;
  • Review the internal process used for determining whether an accommodation is appropriate, including the process used to obtain medical documentation and for determining the essential functions of a position.

For more information, please contact Kerry A. Shad

Employment, Labor and Human Resources

Employee Benefits and Compensation

Environmental Health and Safety

Government Contracting

Privacy

Smith Anderson publishes eTrends periodically as a service to clients and friends. The purpose of this eTrends is to provide general information about a significant legal development in the field of employment law. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader’s particular circumstances.

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when credit is given to Smith Anderson.
©Copyright Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. 2012
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Jamie Greene
jgreene@smithlaw.com
T: 919.838.2045

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