ADA AMENDMENTS ACT

By Sharon G. Hobbs

On September 25, 2008, President Bush signed the ADA Amendments Act (ADAAA). The law becomes effective on January 1, 2009, and will expand the protection of the ADA.

The law explicitly states that it intends to reject the United States Supreme Court decision in Sutton vs. United Airlines (1999) which held that measures which mitigate the impact of a impairment (such as medication, medical devices, prosthetics, hearing aids, mobility devices, and oxygen therapy) may be considered in determining whether an individual is disabled. The only mitigating measures which may be considered are ordinary eye glasses and contact lenses

The ADAAA specifically states that uncorrected vision of a certain acuity may not be used as a criteria for employment unless the employer can show that the criteria is job related for the specific position and is consistent with business necessity.

The legislation broadens the definition of “regarded as” having an impairment from being regarded as having an impairment which limits a major life activity to being regarded as having a physical or mental impairment whether or not it limits or is perceived to limit a major life activity. The law specifically states that being “regarded as” having an impairment does not include transitory impairments which are expected to last less than six (6) months.

In concessions to employers, the law specifically states that employers are not required to provide reasonable accommodations to individuals who are not actually disabled but only “regarded as” having an impairment and that the law may not be used to create a reverse discrimination claim by non-disabled individuals

The law also explicitly states that it is intended to reject the United States Supreme Court’s decision in Toyota vs. Williams (2002) establishing a strict standard for the determination of disability. Congress expressly stated that it should be easier to prove that an individual is disabled under the new definitions and that the focus should be on whether an employer has met its obligations not on whether an individual is disabled. An individual will no longer have to prove that he or she has an impairment that prevents or severely restricts the individual form doing activities that are of central importance to most peoples lives as required by the court in Toyota vs. Williams.

The ADAAA also adds the following rules with regard to interpretation of “disability”:

(1) an impairment only needs to limit one (1) major life activity to be a disability; and
(2) an impairment that is episodic or in remission is still a disability if it would substantially limit a major life activity when it was active.

CONCLUSION

Employers will have obligations to provide reasonable accommodations and to avoid discrimination against a broader group of individuals after December 31, 2008. Employers will need to take care that they do not inadvertently continue to use the old standards next year or they will find themselves on the wrong side of the law.

Sharon Hobbs practices in the areas of business law, employment law and estate planning.

This article is a general discussion of legal issues and is not intended to be legal advice. We would be pleased to review the specific facts and law regarding any given legal matter.