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Jun 2008
26
June 26, 2008

Major Changes to the ADA Are Likely, and Soon

In 2007, the Democratic majority in Congress introduced the "ADA Restoration Act of 2007," a bill that would have dramatically expanded the coverage of the Americans With Disabilities Act and the obligations that it imposes on employers.

On June 25, 2008, a substitute bill sponsored by a coalition of Democratic and Republican legislators was passed by the House, by a vote of 402 to 17. The substitute bill is called the "ADA Amendments Act of 2008." It is likely to move quickly through the Senate because it is perceived as a compromise and is supported by many employer organizations including, for example, the Society for Human Resource Management.

The good news for employers is that the ADA Amendments Act will not expand ADA obligations nearly as much as the proposed ADA Restoration Act would have. The bad news is that it will significantly expand ADA coverage, and will result in a new wave of ADA litigation as courts struggle to interpret the "new ADA."

The Americans With Disabilities Act has been in effect since 1990. The main purpose of its employment provisions is to prohibit discrimination and require employers to make "reasonable accommodations" by spending money and making workplace changes to help disabled individuals to succeed in the workplace. An employer must spend money and/or make changes unless doing so would cause an "undue hardship," defined as the point at which an accommodation will cause the employer "significant" difficulty or expense. The statutory language is vague and the result has been a lot of litigation as to when an accommodation is "reasonable" and what constitutes an "undue hardship" in a given case. Because fact issues are often involved, many of these cases are resolved by jury trial-an expensive and unpredictable process.

The high volume of ADA litigation has been reduced somewhat by several Supreme Court decisions construing the ADA term "disability." The Court has ruled that to be an ADA disability, an impairment must be "permanent or long-term" and must severely limit a person's ability to conduct the normal daily activities in which most people engage ("major life activities"). The Court has also ruled that a person is not "ADA disabled" if their disability is controlled by medication or medical appliances so that it doesn't severely restrict those activities. Finally, the Court has ruled that, to the extent that "working" is a major life activity, a person is not "disabled" just because they cannot perform a specialized job, but only if they cannot perform a broad range or class of jobs.

The stated purpose of the ADA Amendments Act is to overrule these Supreme Court decisions.

  • Under the amendments the term "disability" is to be "broadly construed"-to be considered "disabled" a person does not have to be "prevented" or "severely limited" from performing a covered life activity, just "materially restricted."

     
  • Under the amendments a person is disabled even if s/he can perform normal daily activities without restriction, if s/he has a material restriction of a "major bodily function" such as the digestive, neurological, respiratory or other functions.

     
  • Under the amendments a person with an impairment will be considered disabled even if their impairment is corrected by medication or medical appliances like hearing aids.

     
  • The amendments add "working" as a specifically covered major life activity. The new language could be read to eliminate the need for a person to show that their disability keeps them from performing a broad range or class of jobs, by requiring only that the person's ability to work is "materially restricted."

     
  • The amendments clarify that a person need only be substantially limited in a single major life activity to be considered disabled.
     

Like the original ADA, the amendments use language that is inherently unclear, which means that there will be another wave of litigation in which the courts try to determine what Congress intended. Additional ambiguities include the following:

  • The amendments add language stating that "an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." This revision would cover individuals such as those whose diabetes or epilepsy is controlled by medication who are not presently considered disabled and further indicates that the amendments will eliminate the requirement that a condition must be permanent or long-term to constitute an ADA disability.

     
  • The amendments add language stating that if a person is "subjected to an action prohibited by this Act" because they have or are perceived to have an impairment, s/he qualifies for protection under the ADA even if the impairment does not limit and is not perceived to limit a major life activity. This new language is ambiguous, and will also increase litigation.

There is one positive change for employers. The courts have been debating whether if an employer refuses a job to someone because it "regards" him or her as disabled, the employer must make workplace changes to accommodate that individual, even if s/he is not disabled. This highly technical issue is resolved by the amendments, which specify that accommodation is not required in such a situation.

The Bush Administration expressed support for the amendments in concept, but suggested that the amendments should be narrowed and clarified, noting that as written they will undoubtedly result in a significant increase in ADA litigation. The House did not agree and the amendments were passed without change.

We will keep you advised of the progress of this important proposed change to federal employment law.
 

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