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ADA Amendment Act of 2008

October 16, 2008
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Related Topics: Disabilities, Discrimination and EEOC Compliance, Featured Article
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On September 25, 2008, President Bush signed into law the Americans with Disabilities Act Amendments Act of 2008, effective January 1, 2009. This act, which overturns four U.S. Supreme Court decisions, provides the ADA’s definition of disability "shall be construed in favor of broad coverage under the Act, to the maximum extent permitted by the Act."

The act expands the definition of disability in the following ways:

  • An impairment that is "episodic or in remission" will qualify as a disability if the impairment "would substantially limit a major life activity when active." This means conditions that do not impact a major life activity between episodes may now qualify as protected disabilities.

  • Mitigating measures can no longer be considered. Specific mitigating measures that should not be considered include: medication, prostheses, reasonable accommodations, or learned behavior or adaptive neurological modification. However, the act states that eye glasses or contact lenses may be considered by a court in deciding whether someone with imperfect vision is disabled. This provision of the act overturns Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases. Sutton is a 1999 Supreme Court decision holding that mitigating measures must be considered in determining whether the impairment substantially limits a major life activity.

  • The act defines major life activity to specifically include "caring for oneself, performing manual tasks, seeing, hearing, eating, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working" and operation of a major bodily function such as "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." This rejects the Supreme Court decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which stated that impairments that only interfere in a minor way with the performance of manual tasks do not "substantially limit" a major life activity. The act now covers those impairments that impact a major bodily function even if they do not impact a traditional major life activity.

The "regarded as" prong of the act covers individuals who have been subjected to an actual or perceived physical or mental impairment, regardless of whether the impairment limited or is perceived to limit a major life activity. This means that an employee only has to show that the employer regarded him or her as having a mental or physical impairment, not that it limited a major life activity. However, impairments that are "transitory," meaning those with an "actual or expected duration of 6 months or less," are not covered. P.L. 110-325

     Impact: The ADA Amendments Act effectively resets our understanding of how employers and employees can best work together to address employees’ disability-related requests for accommodation.

Recent Articles by James E. Hall, Mark T. Kobata Marty Denis

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