October 10, 2008

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ADA Amendments Act of 2008 Provides Broader Employee Protections

On September 17, 2008, the House passed the ADA Amendments Act of 2008, legislation that expands the definition of disability under the Americans with Disabilities Act ("ADA"). The ADA Amendments Act of 2008 was proposed in response to a series of Supreme Court decisions that have limited the definition of disability under the ADA. The Senate had already unanimously passed the same bill on September 11, 2008, and President Bush is expected to sign it into law in the coming weeks.

The Current Narrow Definition of "Disability" Under the ADA

The ADA was enacted in 1990 to prohibit discrimination against qualified individuals with disabilities in areas such as employment, access to businesses and other public facilities, and transportation. Under the ADA, a physical or mental impairment that "substantially limits one or more . . . major life activities" is a "disability." 42 U.S.C. § 12102(2)(A).

Supreme Court decisions over the past ten years have narrowed the definition of disability under the ADA. In Sutton v. United Air Lines, Inc., for example, the Court held that the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment. 527 U.S. 471, 474 (1999). In other words, individuals whose impairments are largely corrected by medication or other devices have not been considered "disabled" within the meaning of the ADA. Id. at 486.

The Supreme Court further narrowed the protections of the ADA in Toyota Motor Mfg., Kentucky, Inc. v. Williams, by concluding that an individual is "substantially limited" only if the limitation in question is "considerable" or the individual is limited "to a large degree." 534 U.S. 184, 196 (2002). Moreover, the Court found that the term "major" as used in the phrase "major life activities" means "important" and refers to "those activities of central importance to daily life." Id. at 197.

Highlights of the ADA Amendments Act of 2008

Because many individuals have been found to be excluded from the definition of the term "disability" following the recent Supreme Court cases, the ADA Amendments Act of 2008 was introduced to "restore the intent and protections of the Americans with Disabilities Act of 1990." The following are some of the key changes under the ADA Amendments Act of 2008:

• The definition of disability is to be construed in favor of broad coverage of individuals.

• Mitigating measures such as medications or medical devices (with the exception of ordinary eye glasses and contact lenses) cannot be considered when determining if a person is entitled to the protections of the ADA.

• The Equal Employment Opportunity Commission is charged with redefining what it means for an impairment to "substantially limit a major life activity."

• The primary focus of cases brought under the ADA should be whether covered entities have complied with their obligations. The question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.

• A person is not disabled if the person is regarded as having impairments that are transitory and  minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

Absent a veto by President Bush, which is not expected, the ADA Amendments Act of 2008 will become effective on January 1, 2009. As a result of the amendments, there will likely be a rise in ADA litigation and cases that previously might have been summarily dismissed are more likely to require a trial. In response to the ADA Amendments Act of 2008, companies should consider revising their employment policies and conducting training for managers, supervisors, and human resources professionals on disability-related issues.

If you have any questions about these employment updates and how your business may be impacted, please contact Carolann E. Bullock, Andrea G. Lisenbee, or Kristy L. Peters. If you would like to receive Ryley Carlock & Applewhite's "Employer Alerts" electronically, please contact Paul Ward, Marketing Director, at pward@rcalaw.com.

The Labor & Employment Practice Group:

Michael D. Moberly mmoberly@rcalaw.com (602) 440-4821
Carolann E. Bullock cbullock@rcalaw.com (602) 440-4828
Charles L. Chester cchester@rcalaw.com (602) 440-4806
Nathan R. Niemuth nniemuth@rcalaw.com (602) 440-4810
Rodolfo Parga, Jr. rparga@rcalaw.com (602) 440-4848
Andrea G. Lisenbee alisenbee@rcalaw.com (602) 440-4832
John M. Fry jfry@rcalaw.com (602) 440-4867
Erin O. Sweeney esweeney@rcalaw.com (602) 440-4858
Kristy L. Peters kpeters@rcalaw.com (602) 440-4863
Ellen J. Glass eglass@rcalaw.com (602) 440-4887

This Employer Alert is a publication of Ryley Carlock & Applewhite. It is intended to provide general information about developments in labor and employment law. It does not constitute legal advice. Readers are advised to consult an attorney to discuss the applicability of the legal principles described in this Employer Alert to specific circumstances