Legal Update: 2008 Amendments to the Americans with Disabilities Act

On September 25, 2008, the ADA Amendments Act of 2008 ("ADAAA" or "Act") was signed into law.  

The Act takes effect on January 1, 2009, and expands the scope of protection afforded to individuals under the ADA, as well as § 504 of the Rehabilitation Act.  While the basic definition of "disability" remains the same, the ADAAA alters and enlarges the way its terms will be interpreted and applied.   

The term "disability" means, with respect to an individual:

The ADAAA expressly overturns two significant Supreme Court decisions that had narrowly construed this definition of "disability."  As a whole, the Congressional guidance expressed in the ADAAA is to"provide broad coverage" for individuals with disabilities.    

Sutton v. United Air Lines: Mitigating Measures and Present Condition   

Prior to this amendment, the Supreme Court had interpreted the ADA to require the determination of whether an impairment substantially limits a major life activity to be made in consideration with the "ameliorative effects of mitigation measures."  Sutton v. United Air Lines, 527 U.S. 471 (1999).  In other words, an impairment would not be considered to substantially limit a major life activity if it was controlled or eliminated with medication, equipment, or other measures.  Lower courts, relying on this interpretation, held that whether a person with diabetes, for example, was "substantially limited" in a major life activity must be evaluated with regard to mitigating measures, such as insulin injections and diet control, and the person's present condition.  The ADAAA has explicitly overturned this aspect of Sutton, and under the new Act, only the ameliorative effects of ordinary eyeglasses or contact lenses may be considered in assessing whether an impairment substantially limits a major life activity.

The Act also clarifies that an impairment that is episodic or in remission may be considered a disability if it would substantially limit a major life activity when active.  Previously, as stated in the Sutton case, a person was required to be "presently - not potentially or hypothetically" limited in a major life activity in order to demonstrate a disability.  Again, many lower court rulings relied on this language to limit the application of the ADA.  For example, in cases of individuals with severe or life-threatening allergies, courts have frequently held that if the person functions normally when not exposed to the allergen, the impairment does not qualify as a disability.  These decisions are called into significant question under the new ADA amendments.

Toyota v. Williams: The Court's Narrow Construction   

 The other major Supreme Court decision that was expressly disavowed by the ADAAA is Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002).  The Court in Toyota held that the terms "substantially limit" and "major life activity" should be strictly construed and created a demanding standard for qualifying as disabled.  This decision also held that "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."  Congress unequivocally rejected the Supreme Court's interpretation, stating that it created an "inappropriately high level of limitation" on coverage under the ADA  and that "the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis."   

EEOC Regulations    In addition to overruling these two Supreme Court decisions, Congress found that the Equal Employment Opportunity Commission (EEOC) regulations defining the term "substantially limits" as "significantly restricted" set the bar too high.  Congress instructed the EEOC to revise this portion of its current regulations.  No action has yet been taken, however.  According to the EEOC website, it "will be evaluating the impact of these changes on its enforcement guidances and other publications addressing the ADA."   

Specific Requirements of the ADA Amendments Act of 2008

Mitigating measures include:

The Act specifically addresses only the "ameliorative effects" of mitigation.  Presumably, if the mitigating measures have negative or limiting effects (e.g., side effects of medication), those could be considered in assessing an individual's limitations.

The definition of "major life activity" is expanded by inclusion of two non-exhaustive lists:

An individual is "regarded as" having a disability if he or she establishes that a prohibited action was taken because of an actual or perceived impairment, whether or not that impairment limits or is perceived to limit a major life activity.


Not All Employment Rules Changed by the ADAAA

The process of determining whether an accommodation is "reasonable" has not changed.

An accommodation is not "reasonable" if it imposes an "undue hardship" on the employer's business.  Whether an undue hardship would result is determined by considering several factors:


Effect on Section 504 Obligations for Educating Students with Disabilities

The definitions of "disability" and "individual with a disability" contained in the ADAAA have been explicitly inserted into the Rehabilitation Act of 1973.  See 29 U.S.C. § 705 (9)(B), (20)(B).  Therefore, effective January 1, 2009, all of the specific changes noted above will also apply to disability determinations made under Section 504.               The Office for Civil Rights (OCR), which has responsibility for enforcing Section 504, has not yet offered specific guidance on the new law.  However, public schools can expect to be  impacted in the following ways:


Conclusion   Under the ADA Amendments Act of 2008, the basic frameworks of the ADA and Section 504 have not changed.  On the other hand, definitions of key terms and rules of construction have been broadened to reflect Congress' intent to extend the protections of the ADA.  As a result, school systems may face an increased number of requests for accommodations on the basis of disability under both the ADA and § 504.    Until the EEOC promulgates new regulations, until OCR issues opinions or guidance, and until courts have had the opportunity to apply the amendments to specific factual situations, a cautious approach is warranted.  Determinations that an individual's impairment is not a disability are likely to receive heightened scrutiny with passage of the ADAAA.  As a practical matter, with a more inclusive definition of disability, the emphasis is likely to shift from the question "Does the employee or student have a disability?" to "What is the proper response to the employee's or student's impairment?"

 

Please contact our office if you would like assistance in reviewing your current policies and procedures in light of these important changes to the law.