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Record retention is complex and time consuming. However, in addition to complying with various federal and state laws, keeping good, well-organized records can be very helpful in documenting and supporting an organization’s employment actions.
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September 29, 2008
How Updated ADA Affects You

By Joan S. Farrell, J.D.
Legal Editor

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The ADA Amendments Act of 2008 (ADAAA), passed by the House and Senate earlier in September, was signed by President Bush on September 25.The changes enacted by the ADAAA affect the core of the Americans with Disabilities Act (ADA) by expanding the definition of disability.

The law will take effect January 1, 2009.

The stated intent of the ADAAA is to restore the ADA 's definition of disability and to ensure that the amended ADA provides a "broad scope of protection." Since the ADA 's enactment in 1990, the definition of disability has been narrowed through a series of U.S. Supreme Court decisions. The ADA defines a disability as:

  • A physical or mental impairment that substantially limits one or more major life activities
  • A record of such an impairment
  • Being regarded as having such an impairment

The Court narrowed the definition with strict interpretations of the terms that determine whether an individual has a disability. The ADAAA expressly rejects the U.S. Supreme Court's interpretations of the terms "substantially limits" and "major life activity." It also rejects the standard set by the Court that required the consideration of the effect of "mitigating measures" in the analysis of a qualifying disability. In addition, the ADAAA broadens the definition of "regarded as having an impairment" and allows an episodic impairment to be considered a disability under certain circumstances. The ADAAA expressly seeks to shift the focus from whether an individual has a disability to "whether covered entities have complied with their obligations." Under the amended ADA , many more employees will be deemed to have a protected disability, and employers will need to make sure they engage in the interactive process and provide reasonable accommodation to qualified individuals.

Definition of disability. Under the ADAAA, the definition of disability is to be construed "in favor of broad coverage of individuals under this Act, to the maximum extent permitted by [its] terms." This will likely result in a sharp increase in the number of individuals found to have a covered disability.

Substantially limits a major life activity. In Toyota Motor Manufacturing v. Williams (122 S. Ct. 681 (2002)) , the U.S. Supreme Court held that an impairment must "prevent or severely restrict" an individual in tasks that are of "central importance to most people's daily lives," rather than simply restricting the individual's ability to perform tasks in a particular job. The ADAAA calls this interpretation "an inappropriately high level of limitation" and mandates an interpretation of the term "substantially limits" in a manner consistent with the findings and purposes of the ADAAA (i.e., to reinstate a broad scope of protection under the ADA). The ADAAA also rejects the EEOC's definition of "substantially limits" as "significantly restricted." ( Note: The ADAAA also gives the EEOC authority to issue binding regulations consistent with the purpose of the amended ADA .)

The ADAAA expands the term "major life activity" by adding activities to those already enumerated in EEOC regulations. The new activities include eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. Significantly, a major life activity also now includes the operation of a major bodily function, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive systems.

Episodic impairments. Under the ADAAA, an impairment that is episodic or in remission is a disability if the impairment would substantially limit a major life activity when active.

Mitigating measures. In Sutton v. United Air Lines (119 S. Ct. 2139 (1999)) , the Court held that mitigating measures must be considered in determining whether an individual has a disability. Under the ADAAA, disability determination is made without regard to ameliorative effects of mitigating measures including hearing aids, medication, medical supplies, auxiliary aids and services (such as qualified interpreters for individuals with hearing impairments), reasonable accommodations, and "learned behavioral or adaptive neurological modifications." It is likely that this last measure is intended to address the Court's ruling in Albertsons, Inc. v. Kirkingburg ( 119 S. Ct. 2162 (1999)) where the employee's brain subconsciously learned to compensate for his monocular vision. That compensation was found by the Court to be a mitigating measure, and using the Sutton analysis, the Court ruled that the employee did not have a disability under the ADA . The ADAAA excludes ordinary eyeglasses and contact lenses from the list of mitigating measures. Under the ADAAA, the employers may no longer take into account an individual's use of mitigating measures when considering whether an impairment substantially limits a major life activity.

Regarded as. Sutton also held that "regarded as" means an individual was regarded as being unable to perform a broad range of jobs, not just the job in question. Under the ADAAA, an individual meets the requirement of being "regarded as" having a disability if he or she has been subjected to an unlawful employment action because of "an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." In other words, if an employee is fired because he is perceived to have an impairment , he meets the requirement of being regarded as having a disability under the ADAAA. An impairment that is "transitory and minor" is not covered. A "transitory impairment" has an actual or expected duration of 6 months or less.

The threshold issue of whether an individual has an ADA disability will no longer be the focus of most litigation. Instead, it is likely that the focus will be on the individual's ability to perform the essential functions of a job; and whether the employer has met its obligations to engage in the interactive process and provide a reasonable accommodation. In addition, there will probably be an increase in "regarded as" litigation, with employees claiming an adverse employment action was based on an employer-perceived impairment.

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