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.