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CONGRESS GIVES
FINAL APPROVAL TO SWEEPING AMENDMENTS TO THE ADA
As predicted,
Congress passed the ADA Amendments Act of 2008 (the ADA
Act of 2008), and the legislation is now ready for the President’s
signature. The White House has stated that President Bush
will sign the bill into law, just as his father signed into
law the Americans with Disabilities Act of 1990. Once signed,
the law will become effective January 1, 2009.
Congress’s intent with the ADA Act of 2008 is to
expand the definition of “disability” to include
a larger population of individuals than the law currently
protects. The result, of course, is that it will be easier
for individuals to bring claims under the ADA. In revamping
the ADA, Congress specifically overruled two significant
Supreme Court decisions: Sutton
v. United Air Lines (which directed courts to take into
consideration the ameliorative effects of mitigating measures
in determining whether an individual has an ADA disability)
and Toyota
Motor Manufacturing v. Williams (which held that for
an impairment to qualify as an ADA disability, it must have
a “substantial effect” on an employee’s
daily life, not just the employee’s ability to perform
manual tasks associated with his or her job).
The key provisions of the ADA Act of 2008 include:
- “An impairment that substantially limits one major
life activity does not have to limit other major life
activities to be considered a disability.” Thus,
in order to be covered by the ADA, employees need only
show that they are limited in their ability to perform
certain tasks required by their jobs (e.g., repetitive
work with hands and arms extended at or above shoulder
levels for extended periods of time), even if their impairment
does not substantially limit them in any other manner
or activity.
- “An impairment that is episodic or in remission
is a disability if it would substantially limit a major
life activity when active.” Thus, even in a dormant
state, the impairment may be a disability. Impairments
with an actual or expected duration of six months or less,
however, are not covered by the ADA.
- “The determination of whether an impairment substantially
limits a major life activity shall be made without regard
to the ameliorative effects of mitigating measures.”
This will prohibit courts from taking into account mitigating
measures, like prescription drugs, medical supplies and
equipment, hearing aids, and prosthetic limbs, when deciding
whether an individual has a covered disability. It will,
however, remain permissible to consider a vision impairment
in its corrected state with contacts or eyeglasses.
- The definition of “disability” includes
employees who claim they have been discriminated against
based on a perception that they are impaired, regardless
of whether they actually have a disability. The ADA Act
of 2008 provides, however, that employers do not have
to provide any accommodation to an employee “regarded
as” disabled (which resolves the existing split
in the federal circuits on this issue).
- Concentrating and thinking are now “major life
activities” that can be substantially limited by
an impairment under the ADA. Therefore, individuals with
conditions like ADD and ADHD will have a much easier time
of meeting their burden of proving disabled status, and
the benefits they may reap from prescribed medications
are no longer significant to the analysis.
If you are interested in learning more about these significant
changes to the ADA, Shawe Rosenthal will be presenting at
our offices a series of complimentary Breakfast Briefings
on the ADA Act of 2008.
We have scheduled the following the dates and times: Tuesday,
October 7th at 8:30 a.m.; Tuesday, October 14th at 10:00
a.m.; and Tuesday, October 21st at 8:30 a.m. Space is limited!
To reserve your spot, please contact Lisa Mangus at 410-843-3462
or lam@shawe.com.
September 19, 2008
Shawe
Rosenthal, LLP provides this publication for informational
purposes, and it should not be construed or relied upon
as legal advice. You should contact your Shawe Rosenthal,
LLP lawyer to discuss any questions that you may have concerning
your own situation.
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