On September 25, 2008, President Bush signed into law the ADA Amendments Act, which clarifies and strengthens worker protections guaranteed by the Americans with Disabilities Act (ADA).  The law is set to take effect on January 1, 2009.

The Amendments
In addition to more clearly defining "disability," the measure is designed to reverse some of the narrow standards that the U.S. Supreme Court used in recent years to determine who was considered “disabled”.  According to a summary released by the Congressional Research Service, the new law will:
 

  • Prohibit the consideration of measures that reduce or mitigate the impact of impairment—such as medication, prosthetics and assistive technology—in determining whether an individual has a disability.
  • Cover workers whose employers discriminate against them based on a perception that the worker is impaired, regardless of whether the worker actually has a disability.
  • Clarify that the ADA provides broad coverage to protect anyone who faces discrimination on the basis of a disability.

“Despite some significant changes, it is likely that most businesses will not feel much of an impact – financial or otherwise”, stated Michael Eastman, Executive Director of Labor Policy for the U.S. Chamber of Commerce. The new law still allows employers to define the essential functions of a position, and it does not change the fact that an individual still needs to be “qualified” to perform the job. It also does not change any requirements involving what employers have to do to provide reasonable accommodations to a disabled employee.

The new law does however, broaden the interpretation of “disability”.  The ADA currently defines "disability" to mean, with respect to an individual: (1) "a physical or mental impairment that substantially limits one or more of the major life activities of such individual;" (2) "a record of such an impairment;" or (3) "being regarded as having such an impairment." Courts have narrowly construed that definition, particularly with regard to what constitutes a substantial limitation, a major life activity, and a perceived disability.

The amendments do not change the language of this definition. Instead, they add new provisions that have the effect of expanding the definition to encompass more health conditions. The amendments require that the courts more broadly construe the definition of “disability”, including the meaning of the term “substantially limits.”

In addition, the law provides that courts should not consider “mitigating measures” such as prescription drugs or other remedies in cases involving disabilities.  Under the new law, an impairment that is in remission or simply episodic, is considered a disability “if it would substantially limit a major life activity when active.” Also included in the bill is a list of major life activities as defined by the law (e.g. learning, communicating, seeing, walking), as well as body functions (e.g. immune system, normal cell growth, and neurological functions) that are required to perform major life activities.

Significance
These rather poorly publicized amendments will subtly impact all employers by making the hiring process more complex and fraught with risk.   For example, the amendments provide no clear guidance as to the key definition of "substantially limits". This amendments mean that the body of case law that has built up over the last 15 years will no longer be as reliable a guide to employers. Moreover, the amendments will impact employers sued for alleged ADA violations, as they will have a much harder time prevailing in summary judgment.  In states such as California, with existing state laws more expansive than the ADA, a state law analysis must also be conducted when confronted with questions of disability.

We strongly recommend that all employers consider this legislation a wake up call to review all existing job descriptions to confirm that they reflect the current requirements – particularly with respect to qualifications and “the essential functions” required for the position.  It is important to note that current job descriptions are critical for existing employees as well as new hires, because they form the foundation of performance management as well as the basis to determine if an injured worker can return to a position.

If you need help with drafting position descriptions or any type of disability analysis, please contact our offices.