10/ 10/ 2008
by Karen R. Harned, NFIB Small Business Legal Center
President Bush recently signed a bill into law that will greatly expand the number of workers considered disabled under the Americans with Disabilities Act. The ADA Amendments Act of 2008 is designed to enlarge coverage by overturning a series of U.S. Supreme Court cases, which limited the number of persons who could demonstrate they were disabled. The amendments passed with strong support from both parties.
The Americans with Disabilities Act of 1990
The Americans with Disabilities Act of 1990 sought to eliminate discrimination against disabled persons in employment, transportation, public accommodations, communications and governmental activities. There are three ways one can be deemed disabled: (1) a person has a physical or mental impairment that substantially limits one or more major life activities; (2) a person has a record of such impairment; or (3) a person is regarded as having such impairment. Major life activities were not originally defined in the 1990 Act, leaving that task to the agencies responsible for enforcing the ADA and the courts. If a person is judged to be disabled, reasonable accommodations must be made for that person, unless that creates an undue hardship.
The initial legal battles focused on who was disabled. The Supreme Court limited the reach of the ADA by holding that measures or devices that correct a disability, such as eyeglasses, should be taken into account when determining whether a person is disabled. The Court also mandated that an impairment must restrict the person from doing activities of central importance to most people’s lives—not just a certain activity. These decisions were criticized by many who claimed that truly disabled individuals were being denied coverage.
What are the amendments and how will they affect employers?
- The amendments call for “the definition of disability to be construed in favor of broad coverage of individuals.” This tips the scales in favor of plaintiffs, and will shift the focus of litigation from whether an employee is disabled to whether there was discrimination. Before these recent amendments, a truck driver fired because his blood pressure was too high to drive a commercial truck was not considered disabled under the ADA because medication could lower his blood pressure sufficiently. Now, such a plaintiff probably will be presumed to be disabled, and the courts will likely focus on whether there was a legitimate reason to terminate his employment.
- Temporary impairments, or those in remission, will be considered a disability if the impairment substantially limits a major life activity when active. This change allows workers such as those who have cancer in remission or diabetes to be covered.
- Mitigating measures such as medication, prosthetics or hearing aids will no longer be considered in determining if an impairment is a disability. Eyeglasses and contact lenses can be considered, but qualifications based on uncorrected vision must be shown to be job-related. So, if a disabled employee can cope with his or her impairment and function in society, this is no longer held against the employee when a court decides if they are disabled.
- Short-term impairments are not covered if the actual or anticipated duration is 6 months or less.
- The new ADA now includes a list of major life activities, including caring for oneself, performing manual tasks, hearing, eating, sleeping, walking, standing, lifting, speaking, learning, thinking and working. Major life activities also include “major bodily functions” such as immune system, digestive system and reproductive system functions. The list will include many employees not previously covered, as the amendments favor broad coverage.
- An impairment that substantially limits one major life activity no longer needs to limit other major life activities to be considered a disability. Earlier Supreme Court rulings would not consider an employee with carpal tunnel syndrome disabled if she can no longer perform her work on an assembly line, because it was not of central importance to most people’s lives. Under the amendments, the inability to perform certain manual tasks is probably enough for a worker to be considered disabled under the new major life activities definition.
- The amendments also revive the third way of being considered disabled: the “regarded as” prong. If a person is treated as if she were disabled by her employer, she no longer has to prove the misconception was so severe that it amounted to a belief that it substantially affected a major life function. The “regarded as” prong is intended to stamp out the myths and stereotypes about disabilities that can be just as harmful as the discrimination itself. It is not clear whether this prong can be enforced effectively, but it may see more litigation.
The amendments go into effect on Jan. 1, 2009. The ADA still allows employers to define the essential functions of the job, and the disabled person still must be qualified for the position. The amendments also left some issues unresolved. There was no clarification of what is a reasonable accommodation, leaving it to the courts to decide. The amendments also leave the “single job rule” in effect, meaning a worker is not disabled if he can no longer perform his job; he must be substantially limited from performing a broad range of jobs. Doubtless, there will further legal action on these matters.
More people will be covered under the ADA, so added pressure will be on businesses to prove their actions were not discriminatory.
