New Amendments to the ADA Broaden the Concept of 'Disability'

Thomas F. Doherty and Marisa J. Steel

President Bush recently signed important legislation that, when it takes effect on January 1, 2009, will expand the scope of the Americans with Disabilities Act of 1990 ("ADA"). The new law, entitled the "ADA Amendments Act of 2008" ("ADAAA"), overturns certain United States Supreme Court holdings and broadens the ADA's current definition of "disability," meaning that more employees will qualify for reasonable accommodations and more people will be able to assert claims for disability discrimination.

The ADAAA Rejects the U.S. Supreme Court's Narrow Interpretation of "Disability"

As initially enacted in 1990, the ADA defined "disability" as a "physical or mental impairment that substantially limits one or more ... major life activities," "a record of such impairment," or "being regarded as having such an impairment." According to Congress, both the Equal Employment Opportunity Commission ("EEOC") and the Supreme Court interpreted this statutory definition too narrowly. Thus, the stated aim of the ADAAA is to reject those interpretations and "reinstate a broad scope of protection."

Specifically, the ADAAA overturns Supreme Court decisions holding that (1) Individuals with physical or mental impairments that are mitigated by medications or assistive devices may be excluded from the ADA's protections; and (2) In order to be considered a disability, an impairment must "prevent" or "severely restrict" activities that are of "central importance to most people's daily lives." Arguably, under the reasoning of these judicial decisions, individuals with certain conditions such as diabetes or epilepsy were not protected by the ADA if they were treated by medications that ameliorated their impairments. In addition, individuals with cancer in remission may have been excluded from protection if their major life activities were not "severely restricted." The ADAAA disapproves of the Supreme Court's narrow interpretation of the ADA and directs the EEOC to revise its regulations accordingly.

Expansion of "Disability" Under the ADAAA

The ADAAA broadens the ADA's protections in a number of ways. First, the ADAAA provides that the determination of whether an impairment substantially limits a major life activity must be made without regard to the ameliorative effects of mitigating measures. "Mitigating measures" are defined to include things such as medication, prosthetic limbs and devices, hearing aids, mobility devices, and oxygen therapy equipment. In addition, the use of assistive technology, reasonable accommodations or auxiliary aids, and learned behavioral or adaptive neurological modifications may not be considered in determining whether an individual is disabled within the meaning of the ADA.

Notably, the ADAAA states that impaired vision that is corrected through the use of ordinary eyeglasses or contact lenses is not a disability. On the other hand, "low-vision devices," which are devices that "magnify, enhance, or otherwise augment a visual image," are "mitigating measures" that may not be considered in determining whether an individual is disabled. Furthermore, the ADAAA provides that employers may not test job applicants' uncorrected vision, unless the test is job-related and consistent with a business necessity.

The ADAAA also expands the scope of individuals covered by the ADA by providing that an impairment that is "episodic" or "in remission" constitutes a disability if the impairment, when active, would substantially limit a major life activity.

Moreover, the ADAAA makes it easier for a person to qualify as disabled by providing a lengthy -- but not exhaustive -- list of what are considered "major life activities," including the following: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, and "the operation of a major bodily function," which would include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

In addition, the ADAAA explicitly rejects the Supreme Court's and the EEOC's interpretations of what must be shown to establish that an impairment "substantially limits" one or more major life activities. In prior decisions, the Court found that "substantially limits" meant the impairment must "prevent" or "severely restrict" activities that are of "central importance to most people's daily lives." Similarly, the EEOC's regulations defined "substantially limits" as meaning "significantly restricted." The ADAAA criticizes the Court and the EEOC for articulating "too high a standard" and requiring "a greater degree of limitation" than Congress intended. Without providing its own definition of "substantially limits," the ADAAA simply directs the EEOC to revise its definitions to be consistent with the findings and purposes of the amendments, which favor a broad scope of protection for people with impairments. Consequently, an area of law that had been settled for several years by Supreme Court precedent has been essentially undone pending revised regulations from the EEOC and new judicial decisions interpreting the ADAAA's intent.

Expanded and Clarified "Regarded As" Coverage

In another change that will facilitate increased claims against employers, the ADAAA broadens the definition of "disability" to include individuals who are "regarded as" having a physical or mental impairment, whether or not the impairment limits or is perceived as limiting a major life activity. The ADAAA tempers this expansion somewhat by stating that an impairment with an actual or expected duration of six months or less does not qualify for the "regarded as" definition. Congress also clarified that employers are not required to provide reasonable accommodations to individuals who are only "regarded as" having (but do not actually have) a physical or mental impairment.

Consequences to Employers as of January 1, 2009

The overall consequence of these amendments is that many more individuals will be considered disabled under the ADA and, concomitantly, employers will be faced with increased obligations to consider reasonable accommodations for the larger pool of employees and applicants who will qualify as disabled. For example, under the ADAAA's broadened definitions, individuals with insomnia, epilepsy, diabetes, muscular dystrophy, multiple sclerosis, learning disabilities such as dyslexia, attention deficit disorder, and cancer, whether or not in remission, may be considered "disabled." In addition, the ADAAA's inclusion of reproductive functions within the definition of "major life activities" could mean that employees undergoing infertility treatments are protected by the ADA.

Given the breadth of coverage mandated by the ADAAA, employers -- even those who have been operating under state or local laws providing greater employee protections than the pre-amendment ADA -- should review their policies and guidelines for evaluating reasonable accommodation requests and should exercise greater care in making adverse employment decisions involving any employee who has an impairment or perceived impairment.

Employers also can expect to defend more disability discrimination lawsuits under the ADA, and it will be more difficult for employers to obtain summary judgment in ADA cases on the basis that a plaintiff is not "disabled" within the meaning of the statute. Indeed, Congress has expressly stated that the "primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis."

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Thomas F. Doherty and Marisa J. Steel are attorneys in the McCarter & English Labor & Employment Group. If you have any questions regarding the impact of the ADAAA or are interested in updating your personnel policies or conducting supervisor training programs that cover the new amendment's expanded scope of coverage, please contact Tom Doherty or Marisa Steel in the Newark office of McCarter & English.