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Sep 2008
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September 23, 2008

ADA Amendments Act Will Take Effect January 1, 2009

On September 19 Congress enacted new rules that broaden the definition of "disability" under the Americans with Disabilities Act. President Bush is expected to sign the ADA Amendment Acts this week. The new law will take effect on January 1, 2009.

The ADA defines a disability as a "physical or mental impairment that substantially limits one or more of the major life activities." In Toyota v. Williams, the Supreme Court ruled that the terms "substantially" and "major" should be construed to create a "demanding standard for qualifying as disabled," and that a medical condition should not be considered to substantially limit a major life activity unless it "prevents or severely restricts" performance of the major life activity. The Act specifically disapproves the Supreme Court's narrow construction of "disability," and adds a provision to the ADA stating that the term is to be "construed in favor of broad coverage of individuals . . . to the maximum extent permitted by the terms of this Act."

In light of this change, courts will now classify an individual as disabled even if their limitations are not "severe." The Act also implicitly reverses Supreme Court rulings that an impairment must be "long-term or permanent" in order to be a disability.

The Act inserts examples of major life activities into the ADA, including "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working." The Act also provides that major life activities will now include "major bodily functions" such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The Act reverses the Supreme Court's holding in Sutton v. United Airlines that a person is not disabled if his/her impairment does not affect major life activities because it is controlled by medication or medical devices. For example, under current law an individual with epilepsy would not be considered disabled if medication prevents seizures and other adverse effects of the condition. Under the new Act, the fact that a person has epilepsy will result in an automatic finding that the person is disabled under the ADA. To remove any doubt, the Act also adds a provision stating that an impairment that is "episodic or in remission" will nonetheless be considered to be a disability if it would substantially limit a major life activity "when active." The only exception to this broad construction of "disability" is that a person is not to be considered disabled just because he or she uses ordinary eyeglasses of contact lenses.

Current court interpretations of the ADA require that to be substantially limited in the major life activity of "working" a person's impairment must substantially limit their ability to perform a "broad range or class of jobs." It is entirely possible that under the new language courts will retreat from this approach, and rule that an individual is substantially limited from working even if his or her impairment restricts them from performing a relatively narrow range of jobs.

The ADA also prohibits discrimination against an individual if he or she is regarded as having a disability. Under new language added by the Act, a person will be "regarded" as having a disability if an employer discriminates against him or her because of a perceived impairment, even if the employer does not view the impairment as "substantially limiting."

Under the ADA, an employer must engage in an interactive process with a disabled individual to determine whether there is a reasonable accommodation that will allow the disabled individual to perform the job that he or she has or wants. Under the ADA Amendments Act it will be even more important for employers to make sure that they engage in the interactive process when a person claims to be disabled, because it is now much more likely that most impairments will be found to be ADA disabilities.

If you have questions regarding the ADA Amendment Act, contact your Warner attorney or any member of the firm's Labor & Employment Group.
 

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