ADA Amendments Act of 2008 expands employee coverage

The Americans with Disabilities Amendments Act of 2008 has added new protections for workers effective Jan. 1, 2009. The Act was signed into law by President Bush on Sept. 25, 2008, effectively over-ruling two U. S. Supreme Court decisions - Sutton v. United Air Lines Inc. (1999) and Toyota Motor Manufacturing (Kentucky) Inc. v. Williams (2002). The new act modified the definitions of “disabilities” and “impairments,” and states in no uncertain terms that the terms “substantially limits” and “significantly restricts” are to be applied more loosely to allow more people to qualify for protection. It is still up to the U.S. Equal Employment Opportunity Commission to flesh out the details through new regulations. The following are key changes in the new law:

1. The term “disability” is to be construed broadly: The term “disability” includes a “physical or mental impairment that substantially limits one or more major life activities.” Congress' express intent was to convey that “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.” In other words, instead of focusing on the employee and just how disabled he or she really is, the courts are to focus on the employer and how much it has done to accommodate, or deter, the employee (or prospective employee). Accordingly, the Act requires that the term “disability” be “construed in favor of broad coverage . . . to the maximum extent permitted …”

2. Expansion of impairments: Under the Act, an impairment that is episodic or in remission would still be a disability, if it would substantially limit a major life activity when active — that is, it doesn't have to manifest itself at work for the person to be covered. For example, a person with cancer that is in remission, or who suffered from seizures (but never had one yet on the job), previously might have had difficulty proving that her condition did, in fact, impair major life activities (and thus, qualify for relief under the old law) despite the fact that she was given lesser opportunities at work. Under the 2008 Act, proof that the impairment did affect a major life activity (such as driving a car, for someone who has had a stroke) would qualify for coverage under the Act. It does not automatically entitle the person to relief, but it keeps her case from being thrown out of court.

3. Expansion of substantially limits: The Act directs the EEOC and the courts to interpret this term “consistent with the findings and purposes” of this act, which are clearly stated to be to expand coverage.

4. Major life activities defined: The Act, for the first time, codifies a list of activities considered to be “major life activities,” including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working and major bodily functions. This list is probably more comprehensive than what courts and juries were using before, and includes activities that might not arise in the course of employment.

5. Mitigating measures not considered: The Act requires that the determination of whether an impairment substantially limits a major life activity be made without regard to the ameliorative effects of mitigating measures (including medication, medical supplies, equipment, prosthetics, hearing aids and cochlear implants) except “ordinary eyeglasses or contact lenses,” which are to be considered when making that determination. In the past, if a person's condition was controlled through one of these means, this could be enough to prevent the condition from being considered as an “impairment.” This means avoiding coverage under the Act is no longer available to employers.

6. Discrimination: The Act also says that it expands the prohibition against discrimination by stating that “no covered entity shall discriminate against a qualified individual on the basis of disability” (instead of “because of the disability of such individual”). It is not yet clear what the impact of this change will be. It will have to await new regulations and guidance from the EEOC.

The bottom line is that the changes will make it much more difficult to defend an ADA claim by arguing that an employee did not have a covered disability for purposes of the ADA. Instead, employers will need to rely more heavily on whether they met their obligations to reasonably accommodate an employee's disabilities and properly engaged in an interactive process with an employee requesting reasonable accommodations. Employers should take the opportunity to re-educate and train supervisors, managers and human resources personnel in the changes to the law as the number of ADA claims are likely to increase.

Susan McGreevy is a partner at Stinson, Morrison, Hecker LLP, Kansas City, Mo., 816/842-4800, e-mail to [email protected].