President Bush Signs the ADA Amendments Act

Posted on September 29, 2008 by Christy Pate

President Bush signed the ADA Amendments Act (S. 3406) into law Thursday, September 25. The new provisions, intended to clarify and strengthen protections Congress intended to guarantee in the original ADA, go into effect on January 1, 2009. For more information on the provisions of the new law and what the law means for employers, please read our previous postings where these issues are discussed in more detail.

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ADA Amendments Act Passed by House and Senate; President Expected to Sign Bill

Posted on September 19, 2008 by Christy Pate

On Wednesday, September 17, by voice vote, the House of Representatives approved the Senate version of the ADA Amendments Act (ADAAA) (S.3406), which the Senate had unanimously approved last week. The White House immediately issued a statement that President Bush looks forward to signing the bill into law. Once signed, the ADAAA will take effect on January 1, 2009.

The Senate bill differed slightly from the previously passed House version. For employers, the most significant difference between the two bills is the decision to eliminate a definition for “substantially limits,” which was included in the House bill. Instead, the new bill directs the EEOC to abandon its current regulation – a regulation that the bill specifically finds too restrictive – and to create a new rule that provides broader coverage.  

As previously reported, other key provisions of the ADAAA include:

  • "Substantially limits" loosened:
    -  Congress rejected several U.S. Supreme Court cases that have narrowly interpreted the ADA, including the court-fashioned requirement that an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to daily life in order to be considered substantially limited.

    -  In addition, an impairment that substantially limits one major life activity does not have to limit any other major life activities.
     
  • Major life activities” expanded:   “Major life activity” is broadly defined, includes specific examples of major life activities, and extends the phrase to include “major bodily functions.”
     
  • Consideration of mitigating measures largely eliminated:  Employers cannot consider the ameliorative effects of mitigating measures in determining whether an individual has a disability. The only exception is that glasses and contact lenses can still be considered.
     
  • Remission or episodic impairments counted: Impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active.
     
  • Limit to life activity not applied to “regarded as” provision: An individual does not have to establish that the impairment limits or is perceived to limit a major life activity under “regarded as” disabled provisions.
     
  • Minor or transitory conditions excluded: Minor or transitory conditions lasting six months or less are excluded from “regarded as” claims.
     
  • No accommodation required under “regarded as” provision: Employers are not required to provide reasonable accommodations to employees who are “regarded as” disabled.

Congress’s clear intent is to provide ADA coverage to more people and to require courts to apply a less demanding standard in determining whether a person is covered by the ADA. Instead, Congress wants courts to focus on whether discrimination based on disability actually occurred. This likely means an increase in the number of employees and applicants who are considered disabled and places greater importance on employer efforts to reasonably accommodate those individuals. Indeed, the legislation strongly suggests that employers will need to reasonably accommodate individuals even if they are fully able to perform their job duties while taking medication or using prescribed medical devices. 

Though some believe that the ADAAA will not cause an increase in litigation, we believe that there will be a rise in the number of cases filed because the bill will make it easier to state a claim and because people initially will seek to test the new provisions. Additionally, under the current ADA and standards, many cases were dismissed before trial because plaintiffs could not meet the high standard of proving that they are disabled. The ADAAA makes this outcome much less likely. As a result, we expect a rise in jury trials as it becomes more difficult for employers to win at the summary judgment stage.
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House Overwhelmingly Approves ADA Amendments Act

Posted on July 11, 2008 by Christy Pate

The U.S. House of Representatives overwhelmingly passed the ADA Amendments Act, H.R. 3195, by a vote of 402-17. The bill would amend the Americans with Disabilities Act (ADA) and reject several U.S. Supreme Court decisions that have narrowed the scope of the ADA’s protection. If enacted, the bill would be effective January 1, 2009.

The intent of the bill is to restore the broad scope of protection available under the ADA.  The legislation includes the following key provisions:

  • The definition of disability is to be construed broadly.
  • Clarifies the definition of “disability” by:
    • Defining “substantially limits” to mean materially restricts (rather than the current standard of prevents or severely restricts);
    • Defining “major life activity” broadly and including within that definition “major bodily functions”;
    • Clarifying that an impairment substantially limits one major life activity does not have to limit any other major life activities;
    • Clarifying that impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active;
    • Prohibiting consideration of the ameliorative effects of mitigating measures in determining whether an individual has a disability; 
    • Stating that an individual does not have to establish that the impairment limits or is perceived to limit a major life activity under “regarded as” disabled provisions. 
  • Provides that employers are not required to provide reasonable accommodations to employees who are “regarded as” disabled.

Having received broad bipartisan support, the bill moved quickly through the House. The Amendments also have the support of both leading employer and disability groups. The legislation is now in the Senate, where it is expected to pass by the end of the year. Some media reports suggest that the Senate may actually take action before Congress takes its August recess.     It is not clear whether the legislation will be signed by President Bush. The Bush Administration expressed its general support for the bill, but has expressed concern that certain provisions are too broad, would be difficult to implement, and would lead to increased litigation.

From a policy and practical standpoint for employers, the clarified definition of what constitutes a disability is expected to increase the overall number of people considered disabled and in turn may require employer to accommodate a larger number of employees. Indeed, the legislation can be read to require reasonable accommodations to be provided to people who are fully able to perform their job duties when they are taking medication or using prescribed medical devices.

From a litigation standpoint, the Amendments generally are not expected to mean significantly more litigation. The Amendments may, however, make it more difficult for employers to win these cases on summary judgment, resulting in more “employee-friendly decisions” and potentially larger settlements.

We will continue to monitor the progress of this bill and will report back here if and when the bill is presented to President Bush for his signature.
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