The Americans with Disabilities Act Amendments Act of 2008 – A Capsule Summary

As President Bush neared the end of his term of service, he signed into law the Americans with Disabilities Act Amendments Act of 2008 ("ADAAA"). Effective as of January 1, 2009, the main purpose of these various amendments was to expand the definition of "disability", thereby providing broader coverage to those individuals working with impairments. The Amendments also clarified many other issues which developed over the preceding nineteen years of interpretation by the courts of the United States. While limited by the available space for this particular article, the following information will provide a brief summary of the most important aspects of these Amendments as they impact employers and disabled workers.

The federal government enacted the Americans with Disabilities Act of 1990 (the "ADA") in an effort to prevent discrimination against disabled individuals in "all aspects of society". (The Americans with Disabilities Act: A Primer for Small Business, Page2). Enforcement of the various provisions of the ADA is overseen by the Equal Employment Opportunity Commission ("EEOC"). On the state level, Pennsylvania also enacted legislation to prevent discrimination against disabled individuals which essentially mirrors most of the protections offered by the ADA. This legislation, the Pennsylvania Human Relation Act ("PHRA"), is governed and enforced by the Pennsylvania Human Relations Commission. The interplay of the PHRA with the ADA is, unfortunately, beyond the scope of this article.

Under the ADA, an employer with fifteen (15) or more employees may not discriminate against a qualified individual with a disability and must make reasonable accommodations for disabled job applicants and employees, unless doing so would impose an undue hardship on the employer. The regulations promulgated by the EEOC and several United States Supreme Court cases ultimately led to a narrowing of the definitions of these various terms and thereby the effective coverage of the ADA. One of the major concerns addressed by the ADAAA was the determination of what individuals were actually protected by the ADA pursuant to the definition of "disability".

Under the original definition in the ADA, a "disability" was considered as, (1) a physical or mental impairment that substantially limited one or more major life activities; (2) having a recorded history of such an impairment, or (3) being regarded as having such an impairment. As you can imagine, these categories led to even further interpretation and limitation by the EEOC regulations and the Supreme Court's decisions.

In an effort to expand the definition of "disability" and clarify these various interpretations, the ADAAA effectively changed the way that the terms of the definition should be viewed. While maintaining the original definition, the ADAAA expands the category of "major life activities" to include two clear and - more importantly - non-exhaustive collections of such activities. The first collection of activities includes many of the previously recognized activities such as caring for oneself, walking, speaking, hearing, learning, seeing, working, performing manual tasks, and breathing. To this list, the ADAAA added such activities as reading, bending, concentrating, and thinking. The second collection of activities encompass major bodily functions such as digestive, bowel, bladder, neurological, immune system, brain, respiratory, circulatory, endocrine, reproductive and normal cell growth. Importantly, neither of these lists is considered comprehensive; but rather, these various entries are only some, but not all, of the activities which may be considered major life activities.

The ADAAA also includes in the definition of disability medical conditions that may be in remission or considered episodic, but would substantially limit a major life activity when actually active. A good example of this type of a condition is diabetes.

With regard to the third category of disability, the ADAAA now considers a covered individual to be one who is "regarded as" disabled when subject to an action that is prohibited by the ADA (such as, termination or failing to hire the individual when otherwise qualified for the position) where the action was based on an impairment that is not considered either transitory or minor. Also of note, individuals who fall within this category of "regarded as" are not entitled to reasonable accommodations.

One of the main decisions of the United States Supreme Court which was overturned by the ADAAA was the case of Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). In this case, the Supreme Court held mitigating measures such as medications, medical equipment, etc. were to be taken into consideration whenever conducting an analysis regarding a determination as to whether a qualifying disability existed. In direct contrast to this holding, the Amendments now provide that such analysis of whether an individual is disabled under the definition of the Act should be made without regard to any mitigating factors, except for the use of ordinary eyeglasses or contact lenses.

While it would seem the ADAAA favors only the disabled employee or individual seeking employment, employers subject to the ADA may still raise the argument of "undue hardship" when defending against a request for reasonable accommodations. The ADA defines "reasonable accommodations" as adjustments or modifications which can be made by an employer so as to enable a person with a qualified disability to experience equal employment opportunities. However, when any such accommodations "result in significant difficulty or expense", then the employer need not provide such accommodations. (The Americans with Disabilities Act: A Primer for Small Business, Page 7). Also, the ADAAA prohibits reverse discrimination claims by other employees against their employers where disabled employees are provided reasonable accommodations to which other employees without such disabilities are not entitled.

At the present time, the EEOC and the U.S. Department of Justice Civil Rights Division are involved in evaluating new and proposed regulations to administer the new provisions of the ADAAA. The final version of the regulations should be available sometime early next year.

While this article can only provide a very brief summary and general overview of some of the considerations of the Amendments to the Americans with Disabilities Act, all employers regardless of the size of their workforce should be aware of the various ramifications of all state and federal laws and regulations which are designed to protect against discrimination in the workplace. For further advice regarding these issues, as well as new topics and trends in business and employment law, please feel free to contact the attorneys at Wolf, Baldwin and Associates.

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