The ADA Amendments Act of 2008 Takes Effect January 1, 2009

Date: Sep 01, 2008

The ADA Amendments Act of 2008 ("2008 Amendments") was signed into law by President Bush on September 25, 2008. When the new provisions take effect on January 1, 2009, thousands of employees whose impairments were previously deemed outside the scope of ADA protection will suddenly be covered and have the right to sue for discrimination in selection, discipline, termination and all other terms and conditions of employment because of a broadened definition of what constitutes a covered disability and the elimination of the need to prove actual disability under the "regarded as" standard.

Broadened Definition of Disability

The Americans with Disability Act of 1990 ("ADA") provides three alternatives to achieve coverage as a disabled individual: (1) having a physical or mental condition that substantially limits a major life activity; (2) having a history of a disabling condition; or (3) being "regarded as disabled." In 1999, the U.S. Supreme Court issued three decisions (commonly referred to as the "Sutton trilogy")holding that corrective and mitigating measures needed to be considered in determining whether a plaintiff was sufficiently limited in performing a major life activity to be entitled to the protections of the ADA. As a result, persons who were diagnosed with conditions that could be controlled or mitigated by medication or medical devices such as epilepsy, severe high blood pressure, hearing loss, myopia, bi-polar disorder and asthma were deemed unprotected. With the exception of the use of ordinary eyeglasses or contact lenses, the 2008 Amendments prohibit any consideration of the ameliorating effects of corrective measures (e.g., medications, assistive technology, or medical equipment) in determining whether impairment substantially limits a
major life activity.

The 2008 Amendments also overturn a 2001 decision of the U.S. Supreme Court (Toyota Manufacturing of Kentucky), which held that the inability of an auto assembly worker to grip tools and perform repetitive work with her hands and arms extended at or above the shoulder level did not constitute a substantial limitation on the ability to perform manual tasks. The worker was diagnosed with bilateral myotendinits and nerve compression in her arms and shoulders. In that decision, the Court held that a worker claiming a limitation on the ability to perform manual tasks had to demonstrate that he or she was severely restricted in performing a broad range of manual tasks central to everyday life, not merely the manual tasks required for a specific job. Under the 2008 Amendments, which direct the courts to interpret the ADA coverage provisions broadly, workers with similar chronic conditions limiting their ability to perform certain manual tasks will come within the Act's protections, and they will be entitled to engage in an interactive process with their employers regarding the existence of a reasonable accommodation that will enable them to retain employment. Terminating such workers without satisfying the requirements of the reasonable accommodation process could result in liability for back pay, compensatory damages and attorney's fees.

The 2008 Amendments further reject the EEOC regulatory interpretation that "substantially limited" in performing a major life activity means "significantly restricted" and instructs the agency to come up with a new definition (and presumably interpretive guidance) that is consistent with Congress's intention to broaden the class of protected individuals. To that end, the Act states that an impairment that substantially limits one major life activity need not limit any other major life activity in order to be considered a disability, and that an impairment that is episodic or in remission is a disability if would substantially limit a major life activity if it were active. The Act also defines the term "major life activity" in a non-exclusive fashion, separately enumerating such functions as learning, reading, concentrating, lifting and bending and adds major bodily functions to the list of covered impairments. These include, but are not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. Employers must also adjust to these changes in evaluating a claim of disability and a request for reasonable accommodation. Only transitory and minor impairments (having an actual or expected duration of six months or less) can safely be deemed outside the broad coverage Congress intended the ADA to have.

Elimination of the Need for Proof of Disability for "Regarded As" Claims

After January 1, 2009, employers will also have greater difficulty in disposing of "regarded as" disabled claims at the summary judgment stage. In the aforementioned ADA decisions, the Supreme Court had held that an individual could not prove that he or she was "regarded as" disabled unless the individual actually had an impairment that substantially limited a major life activity which could not be mitigated through the use of corrective measures. The 2008 Amendments eliminate this requirement. Henceforth, plaintiffs need only show that they were denied a job benefit because an employer erroneously perceived them to be disabled, regardless of whether or not they actually were disabled. It is some consolation that the 2008 Amendments relieve employers of liability (previously imposed by some courts) for failing to offer reasonable accommodation to plaintiffs "regarded as" disabled who are not disabled. However, employers can take little comfort in this, since an employer will be liable for back pay and compensatory damages for denying a job benefit based on the perceived disability.

Be Especially Wary of Continuing to Maintain

Across-the-Board, Facially Discriminatory Qualification Standards

Across-the-board job qualification standards that render all individuals with certain physical or mental limitations ineligible for selection for particular positions -- without regard to an individualized analysis of each person's abilities and qualifications – violate the ADA per se unless such standards are demonstrably job-related and consistent with business necessity. That is the current state of the law, and it is a very difficult standard to satisfy. To date, employers have often avoided having to prove business necessity if they could successfully attack the plaintiff's claim of disability under the more restrictive standards established by the Supreme Court. Given the broadened definition of disability contained in the 2008 Amendments, this defense will have limited utility after January 1, 2009. The 2008 Amendments provide that employers who rely upon across-the-board "uncorrected" visual acuity standards will have to prove business necessity if challenged for rejecting otherwise qualified applicants, even if those applicants fail to meet the definition of disability because of the mitigating effects caused by use of ordinary eyeglasses or contact lenses.

What Employers Should Do Now

In anticipation of the January 1, 2009 effective date, employers are strongly encouraged to make the following preparations for implementation of the 2008 ADA Amendments:

1. Review all position descriptions to ensure that they adequately describe all essential job functions, as well as all essential physical and mental requirements.

2. Validate that all across-the-board job qualification standards that eliminate classes of disabled individuals from consideration for particular positions are job-related and consistent with business necessity.

3. In the absence of acceptable validation studies justifying across-the-board qualification standards, modify selection procedures to ensure that otherwise qualified disabled applicants are individually assessed and given the opportunity to demonstrate the ability to perform the essential functions of a particular position, with or without accommodation.

4. Review and update ADA and reasonable accommodation policies and procedures, consistent with the provisions of the 2008 Amendments.

5. Train recruiters, managers and supervisors to understand the requirements of the 2008 Amendments and how they will affect the operations of the workplace.