Major Changes to the Americans with Disabilities Act Will Take Effect on January 1, 2009

By Ted Olsen

On September 25, 2008, President Bush signed the ADA Amendments Act of 2008 which will go into effect on January 1, 2009. The Amendments are expressly designed to overturn four U.S. Supreme Court decisions and to make it much easier for would-be claimants to show that they are "disabled" and therefore protected by the ADA. Employers should anticipate a major increase in employee reports to management of medical conditions that may now be protected "disabilities" and should also be prepared to extend reasonable accommodations to persons who until now have not been protected by the ADA.

The Amendments will not likely be applied retroactively to employment actions occurring before January 1, 2009. However, an employer's actions before the Amendments take effect will be relevant in assessing whether the employer has violated the law after the effective date. Also, if an employer possesses information about an employee's health condition before January 1, 2009, the employer's knowledge may require immediate action by the employer as soon as the Amendments take effect. For instance, if an employer refused on December 1, 2008, to discuss with an employee a requested accommodation because the employee did not meet the current standard for "disability," the employer should probably revisit the subject with the employee after year's end, as the employee's condition may not be a protected "disability."

This article summarizes the major features of the Amendments and warns of what will be expected of employers.

Most of the Amendments focus on key terms used in the ADA's definition of "disability," 42 U.S.C. § 12102(2)(A) (emphasis added): "A physical or mental impairment that substantially limits one or more of the major life activities of such individual . . . ."

In Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002), the Supreme Court ruled that words such as "substantially" and "major" in the definition of "disability" should "be interpreted strictly to create a demanding standard for qualifying as disabled." The Amendments now declare that the Supreme Court's decision in Toyota Motor Mfg., is too restrictive. Rather than provide a new definition of the term "disability" - or even language clarifying the meaning of "substantially" and "major" — the Amendments simply denounce the Toyota Motor Mfg. decision. The Amendments also reject the ruling in Toyota Motor Mfg. that the term "substantially limited" means "prevents or severely restricts."

In a related vein, the Amendments also delete from the ADA itself two factual assertions on which the Supreme Court relied in Toyota Motor Mfg. Specifically, in 1990, Congress declared that there were "some 43 million Americans" with one or more physical or mental disabilities, 42 U.S.C. § 12101(a)(1), and that "individuals with disabilities are a discrete and insular minority," 42 U.S.C. § 12101(a)(7). The Supreme Court used these factual assertions as guidance when it interpreted the term "disability" in a limited fashion. Now, Congress has simply deleted these factual assertions, as if they were never made.

In a dramatic change in the law, the Amendments overturn three Supreme Court decisions holding that a person's condition should be assessed in its mitigated state (with the benefit of, for example, medication, medical supplies, surgery, assistive technology, treatments, prosthetic devices, oxygen therapy equipment, accommodations, modifications, or behavioral modifications). See, Sutton v. United Air Lines, 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999). The Supreme Court's decisions made good sense — for example, if a person's epilepsy, hearing impairment or dyslexia were controlled or mitigated by medication, an assistive device, or personal adaptation, practically speaking, the person might very well not be "impaired" or "substantially limited." With the 2008 Amendments, however, mitigating measures (with the sole exception of eyeglasses and contact lenses) may not be considered when assessing whether an individual's condition is a "disability" under the ADA. (Despite the eyeglasses and contact lenses exception, employers may not use employment tests, qualification standards or selection criteria based on an individual's uncorrected vision, unless they are job-related and consistent with business necessity.)

After the ADA was enacted, EEOC regulations gave guidance to employers as to the meaning of the term "major life activities," and provided examples of such real world activities, including seeing, breathing, taking care of oneself, and working. The Amendments further expand the definition of "major life activities," by adding to the law more examples of "major life activities," such as bending, eating, sleeping, concentrating, thinking, communicating, reading and walking.

The most far reaching change in the Amendments is that the definition of a "major life activity," will now include the operation of major bodily functions, such as the immune system, cell growth, the digestive system, bowel and bladder functions, the neurological system, the brain, the respiratory system, the circulatory system, endocrine functions and reproductive functions. This approach probably makes all of the other examples of "major life activities" unnecessary (and at least redundant) because most physical or mental impairments naturally affect a person's major bodily function(s), and therefore, will automatically qualify as a disability. For example, under the Amendments, an individual with diabetes is probably "disabled," simply because of the effect of diabetes on a person's endocrine system, even if the individual is not restricted in any way in his or her day-to-day activities or functions. Also, individuals with asymptomatic conditions will be "disabled," notwithstanding the absence of any symptoms.

In the past, EEOC regulations and many court decisions supported the contentions that temporary conditions and conditions in remission were not "disabilities." The Amendments now declare that an impairment that is episodic or in remission is a disability, if it would substantially limit a major life activity when active. It is anticipated that employees who have been treated for cancer, epilepsy, depression and post-traumatic stress disorder, for example, will now be disabled, even though their conditions are in remission.

The Amendments also overturn those court decisions that, while assessing whether a plaintiff was disabled, considered not only the person's impaired major life activities, but the person's major life activities that were not impaired. The Amendments expressly provide that substantial impairment as to any one major life activity is sufficient to demonstrate a "disability," despite the individual's full ability to perform other major life activities.

Employers should anticipate a dramatic jump in cases involving persons who are "regarded as" disabled, due to the Amendments. Employers have become accustomed to the unusual ADA provision that protects not only impaired persons, as described above, but persons who are "regarded as having such an impairment." 42 U.S.C. § 12102(2)(C). Courts have logically ruled that, in such "regarded as" cases, a person should not be protected if he or she is merely regarded as having a physical or mental impairment, unless the person is also regarded as having "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." In other words, all the requirements of an actual disability have been incorporated in the "regarded as" disabled case. This interpretation made sense, insofar as the "regarded as" provision stated, in full, "regarded as having such an impairment." (Emphasis added.) The Amendments have now eliminated this incorporation by reference. Under the Amendments, a plaintiff is protected from any disparate treatment discrimination based on any "actual or perceived physical or mental impairment," unless the impairment is transitory and minor ("transitory and minor" relates only to "regarded as" cases), without reference to any "substantial limitation" or "major life activities."

There is one provision of the Amendments that will benefit employers. Courts have been ruling that an employer's duty to make reasonable accommodation for a disabled person applies equally to an individual who is actually disabled and an individual who is "regarded as" disabled. These decisions may be supported by the strict wording of the law, but not logic, as the premise of most "regarded as" claims is that the person is not actually disabled, and the premise of the duty to make reasonable accommodation is that those who are actually disabled may be qualified to perform the essential functions of the job if they receive reasonable accommodation. Indeed, it has been hard to imagine how someone who is wrongly "regarded as" disabled could be reasonably accommodated. The Amendments eliminate this absurd result, stating that employers have no duty to make a reasonable accommodation for a person who is "regarded as" disabled.

Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

© 2008 Sherman & Howard L.L.C. December 1, 2008

	Contact Us Services Attorneys News and Events Publications About the Firm Inclusiveness Careers Blog In the Media Events and Registration Press Releases Speaking Engagements Articles Client Advisories Subscriptions History Offices Pro Bono Interlaw Contact Us Culture Legal Opportunities Support Staff Publications Client Advisories Home > Publications > Client Advisories > View Major Changes to the Americans with Disabilities Act Will Take Effect on January 1, 2009 By Ted Olsen On September 25, 2008, President Bush signed the ADA Amendments Act of 2008 which will go into effect on January 1, 2009. The Amendments are expressly designed to overturn four U.S. Supreme Court decisions and to make it much easier for would-be claimants to show that they are "disabled" and therefore protected by the ADA. Employers should anticipate a major increase in employee reports to management of medical conditions that may now be protected "disabilities" and should also be prepared to extend reasonable accommodations to persons who until now have not been protected by the ADA. The Amendments will not likely be applied retroactively to employment actions occurring before January 1, 2009. However, an employer's actions before the Amendments take effect will be relevant in assessing whether the employer has violated the law after the effective date. Also, if an employer possesses information about an employee's health condition before January 1, 2009, the employer's knowledge may require immediate action by the employer as soon as the Amendments take effect. For instance, if an employer refused on December 1, 2008, to discuss with an employee a requested accommodation because the employee did not meet the current standard for "disability," the employer should probably revisit the subject with the employee after year's end, as the employee's condition may not be a protected "disability." This article summarizes the major features of the Amendments and warns of what will be expected of employers. Most of the Amendments focus on key terms used in the ADA's definition of "disability," 42 U.S.C. § 12102(2)(A) (emphasis added): "A physical or mental impairment that substantially limits one or more of the major life activities of such individual . . . ." In Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002), the Supreme Court ruled that words such as "substantially" and "major" in the definition of "disability" should "be interpreted strictly to create a demanding standard for qualifying as disabled." The Amendments now declare that the Supreme Court's decision in Toyota Motor Mfg., is too restrictive. Rather than provide a new definition of the term "disability" - or even language clarifying the meaning of "substantially" and "major" — the Amendments simply denounce the Toyota Motor Mfg. decision. The Amendments also reject the ruling in Toyota Motor Mfg. that the term "substantially limited" means "prevents or severely restricts." In a related vein, the Amendments also delete from the ADA itself two factual assertions on which the Supreme Court relied in Toyota Motor Mfg. Specifically, in 1990, Congress declared that there were "some 43 million Americans" with one or more physical or mental disabilities, 42 U.S.C. § 12101(a)(1), and that "individuals with disabilities are a discrete and insular minority," 42 U.S.C. § 12101(a)(7). The Supreme Court used these factual assertions as guidance when it interpreted the term "disability" in a limited fashion. Now, Congress has simply deleted these factual assertions, as if they were never made. In a dramatic change in the law, the Amendments overturn three Supreme Court decisions holding that a person's condition should be assessed in its mitigated state (with the benefit of, for example, medication, medical supplies, surgery, assistive technology, treatments, prosthetic devices, oxygen therapy equipment, accommodations, modifications, or behavioral modifications). See, Sutton v. United Air Lines, 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999). The Supreme Court's decisions made good sense — for example, if a person's epilepsy, hearing impairment or dyslexia were controlled or mitigated by medication, an assistive device, or personal adaptation, practically speaking, the person might very well not be "impaired" or "substantially limited." With the 2008 Amendments, however, mitigating measures (with the sole exception of eyeglasses and contact lenses) may not be considered when assessing whether an individual's condition is a "disability" under the ADA. (Despite the eyeglasses and contact lenses exception, employers may not use employment tests, qualification standards or selection criteria based on an individual's uncorrected vision, unless they are job-related and consistent with business necessity.) After the ADA was enacted, EEOC regulations gave guidance to employers as to the meaning of the term "major life activities," and provided examples of such real world activities, including seeing, breathing, taking care of oneself, and working. The Amendments further expand the definition of "major life activities," by adding to the law more examples of "major life activities," such as bending, eating, sleeping, concentrating, thinking, communicating, reading and walking. The most far reaching change in the Amendments is that the definition of a "major life activity," will now include the operation of major bodily functions, such as the immune system, cell growth, the digestive system, bowel and bladder functions, the neurological system, the brain, the respiratory system, the circulatory system, endocrine functions and reproductive functions. This approach probably makes all of the other examples of "major life activities" unnecessary (and at least redundant) because most physical or mental impairments naturally affect a person's major bodily function(s), and therefore, will automatically qualify as a disability. For example, under the Amendments, an individual with diabetes is probably "disabled," simply because of the effect of diabetes on a person's endocrine system, even if the individual is not restricted in any way in his or her day-to-day activities or functions. Also, individuals with asymptomatic conditions will be "disabled," notwithstanding the absence of any symptoms. In the past, EEOC regulations and many court decisions supported the contentions that temporary conditions and conditions in remission were not "disabilities." The Amendments now declare that an impairment that is episodic or in remission is a disability, if it would substantially limit a major life activity when active. It is anticipated that employees who have been treated for cancer, epilepsy, depression and post-traumatic stress disorder, for example, will now be disabled, even though their conditions are in remission. The Amendments also overturn those court decisions that, while assessing whether a plaintiff was disabled, considered not only the person's impaired major life activities, but the person's major life activities that were not impaired. The Amendments expressly provide that substantial impairment as to any one major life activity is sufficient to demonstrate a "disability," despite the individual's full ability to perform other major life activities. Employers should anticipate a dramatic jump in cases involving persons who are "regarded as" disabled, due to the Amendments. Employers have become accustomed to the unusual ADA provision that protects not only impaired persons, as described above, but persons who are "regarded as having such an impairment." 42 U.S.C. § 12102(2)(C). Courts have logically ruled that, in such "regarded as" cases, a person should not be protected if he or she is merely regarded as having a physical or mental impairment, unless the person is also regarded as having "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." In other words, all the requirements of an actual disability have been incorporated in the "regarded as" disabled case. This interpretation made sense, insofar as the "regarded as" provision stated, in full, "regarded as having such an impairment." (Emphasis added.) The Amendments have now eliminated this incorporation by reference. Under the Amendments, a plaintiff is protected from any disparate treatment discrimination based on any "actual or perceived physical or mental impairment," unless the impairment is transitory and minor ("transitory and minor" relates only to "regarded as" cases), without reference to any "substantial limitation" or "major life activities." There is one provision of the Amendments that will benefit employers. Courts have been ruling that an employer's duty to make reasonable accommodation for a disabled person applies equally to an individual who is actually disabled and an individual who is "regarded as" disabled. These decisions may be supported by the strict wording of the law, but not logic, as the premise of most "regarded as" claims is that the person is not actually disabled, and the premise of the duty to make reasonable accommodation is that those who are actually disabled may be qualified to perform the essential functions of the job if they receive reasonable accommodation. Indeed, it has been hard to imagine how someone who is wrongly "regarded as" disabled could be reasonably accommodated. The Amendments eliminate this absurd result, stating that employers have no duty to make a reasonable accommodation for a person who is "regarded as" disabled. Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation. © 2008 Sherman & Howard L.L.C. December 1, 2008 Copyright 2000-2013 Sherman & Howard L.L.C. All rights reserved. Privacy Policy \| Terms of Use