Congress Amends, and Expands, the ADA

Congress has enacted significant amendments to the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“the ADA” or “the Act”) (signed into law on September 25, 2008), which will take effect on January 1, 2009. See the ADA Amendments Act of 2008, PL 110-325, 2008 § 3406. The amendments are a reaction to several United States Supreme Court decisions and regulations promulgated by the Equal Employment Opportunity Commission (“the EEOC”) that Congress believed unduly limited the protections afforded by the Act. Congress has directed the EEOC to promulgate regulations consistent with the changes to the ADA made by the amendments.

The intention of Congress to expand the coverage of the ADA is reinforced by the elimination from the Act of the reference to 43 million disabled Americans. The Supreme Court had often relied on this reference to place restrictions on the nature and types of disabilities covered by the Act. In the same vein, the amendments eliminate the Act’s description of the disabled as “an insular minority.”

A discussion of the most significant changes is set forth below.

Substantial Limitation of Major Life Activities
For purposes of the ADA, an individual is disabled if suffering from a physical or mental impairment that substantially limits at least one major life activity. In a series of cases decided in 1999, Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), and Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999), the Supreme Court held that employees are not “substantially limited” if corrective measures or physical adaptation enable them to perform the major life activity at issue. Thus in Sutton the plaintiffs were not “substantially limited” in working because their impaired vision was completely corrected by eyeglasses. In Murphy the plaintiff was not “substantially limited” because his blood pressure medication eliminated impairment of any major life activity. And in Albertson the employee, although suffering from monocular vision, was not “substantially limited” in his vision because his brain was able to make the necessary corrections in terms of his depth perception. The recent ADA amendments, however, now make it clear that corrective or mitigating measures are not to be considered in determining whether an employee is “substantially limited.” “Ameliorative” measures that should not be considered in assessing whether and individual is “substantially limited” include:

• • medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies,

• • use of assistive technology,

• • reasonable accommodations or auxiliary aids or services; and,

• learned behavioral or adaptive neurological modifications.

The only exception is with regard to ordinary eyeglasses and contact lenses. The ameliorative effects of these devices must be taken into account in determining whether an employee is “substantially limited” in a major life activity.

The amendments to the Act also overrule what Congress deemed to be the Supreme Court’s overly restrictive interpretation of the Act in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). There, the Court held that the ADA “need[s] to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” In the ADA Amendments Act, Congress expressly rejects the above quoted language and makes clear that “[t]he definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.” Congress also rejected the Court’s holding in Toyota Motor Mfg., Ky.,Inc., citing to EEOC regulations, that to be substantially limiting “[t]he impairment’s impact must also be permanent or long term.” Thus the amendments to the Act provide: “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

Major Life Activities
The Amedments to the Act also clarify and to some extent expand what constitutes a major life activity for purposes of determining whether the individual’s impairment is sufficient to render him or her disabled. “Major life activities” now expressly include, but not by way of limitation:

• • caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

• the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Regarded as Disabled
The amendments also expand the protections of the ADA with regard to individuals who are not disabled but who are regarded by their employers as having a physical or mental impairment. Prior to the recent amendments, to qualify as “disabled,” such an individual had to be “regarded as” having an impairment substantially limiting a major life activity. As a result of the amendments, however, the “ regarded as” definition is met “if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”

Conclusion
Although the full extent to which coverage of the ADA has been expanded must await judicial intrpretation, it is clear that in the future employers must be extra vigilant in protecting themselves against allegations of ADA violations. Employers should closely monitor the forthcoming new EEOC regulations and pay close attention to judicial decisions that are sure to define an ADA that will be significantly broader in scope beginning on January 1, 2009.