Following overwhelming passage in mid-September by Congress, President Bush signed the ADA Amendments Act of 2008 into law on Sept. 25, 2008. The legislation becomes effective on Jan. 1, 2009.
The Act significantly changes the ADA by effectively rolling back many Supreme Court opinions over the last ten years that have narrowed the definition of disability. Important changes that will make it more difficult for employers to prevail in ADA litigation include:
Requiring courts to construe the ADA in favor of broad coverage of individuals under the Act
Prohibiting consideration of mitigating or ameliorative measures such as medication, prosthetics and low vision devices (not including ordinary eyeglasses or contact lenses)
Defining "major life activities" more broadly than the courts have done
Confirming that impairments that are episodic or in remission are "disabilities" if they would substantially limit a major life activity when active
Recognizing the authority of the EEOC to issues regulations implementing the definition of "disability"
There are some silver linings for employers. The Act also makes clear that employers are not required to reasonably accommodate "perceived" disabilities and that "temporary" impairments are not disabilities.
So, what does the ADA Amendments Act mean for you?
Like the increase in ADA litigation in the mid- to late 1990s, a significant increase in requests for accommodation, charges of discrimination and litigation over disability related issues in the workplace is likely. Employers should review their reasonable accommodation policies and reassess their process for determining whether an individual is disabled, and thus entitled to protection under the ADA.
For more information on this, or related issues, please contact Mark Peters or any member of Waller Lansden's Labor and Employment practice at 800-487-6380.
Waller Lansden will be hosting a special breakfast briefing on Oct. 21, 2008 to address the impact of the ADAAA on employers. Seating is limited. Please call or email your contact in the Labor and Employment practice if you would like more information.
The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance.
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