Oct 06, 2008

The Americans with Disabilities Amendments Act of 2008

On September 25, 2008, President Bush signed the Americans with Disabilities Amendments Act of 2008 (“ADAA” or “the Act”). The Act, that will take effect on January 1, 2009, will significantly broaden the number of employees who are subject to the protections of the ADA.

The ADAA retains the original definition of “disability” to include: (1) an impairment that substantially limits one or more major life activities; (2) a record of such an impairment, or (3) being regarded as having such an impairment. However, the ADAA instructs the court system to interpret this definition much more broadly.

Going forward, if an impairment that is in remission or occurs episodically substantially limits a major life activity when active, such impairment could be considered disabling under the new amendments. Further, courts will be prohibited from considering any mitigating measures, other than “ordinary eye glasses or contact lenses,” when determining whether an impairment is “substantially limiting.” The ADAA has instructed the EEOC to revise its regulations to define “substantially limits” broadly, in keeping with the intent of the Act.

The ADAA also broadens the definition of a “major life activity,” specifically describing it to include, without limitation, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major life activities also include bodily functions relating to the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproduction.

Finally, the ADAA broadens what it means to be “regarded as” having an impairment. Now, an employee can be “regarded as” having a impairment, even if the employer does not perceive the impairment as limiting a major life activity. In other words, the employee need not prove that the employer perceives him or her as incapable of performing a range of jobs. On the other hand, the ADAA clarifies that individuals covered only under the “regarded as” prong are not entitled to reasonable accommodation. Moreover, an individual will not be covered under the “regarded as” prong if the actual or perceived impairment is “transitory” (duration of 6 months or less) or “minor.”

The overarching theme of the ADAA is a desire to expand the protections of the Americans with Disabilities Act to as many individuals as possible. Consequently, courts will be expected to focus less on whether an individual is disabled, and more on whether employers are reasonably accommodating impaired individuals and are refraining from discriminating against them. Therefore, employers must focus on conforming their policies to the requirements of the ADAA, retraining employees involved in assessing employee disabilities, broadening their views of when reasonable accommodations may be required, and carefully considering any adverse actions involving employees who now may qualify for protection under the relaxed coverage standards under the ADAA.

For further information on these changes or assistance on addressing disability issues in your workplace, please be sure to contact your employment counsel at Smith, Gambrell & Russell, LLP.

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