Defining “Disability” under the ADA Amendments Act of 2008

Article provided by Law Office of William M. Julien, P.A.
Visit us at www.attorneyjulien.com

The Americans With Disabilities Act (ADA) provides legal protections for workers with disabilities. However, since the passage of the law nearly 20 years ago, a series of court decisions has made it increasingly difficult for those with disabilities to qualify for the law’s protections.

To remedy this problem, Congress recently passed important changes to the ADA. Congress broadened the scope of who is protected and the type of disabilities that qualify for protection under the federal law. The ADA Amendments Act of 2008 (ADAAA) went into effect on January 1, 2009.

While the ADAAA does not change the actual definition of disability, it does clarify the meaning of terms used in the definition of disability, including:

• What it means for a disability to “substantially limit” a major life activity
• What is included as a major life activity
• What it means to be “regarded as” having a disability

The ADAAA also eliminates the beneficial use of mitigating measures to exclude individuals from ADA coverage and offers increased protection to those with episodic conditions and conditions in remission.

“Substantially Limits” Standard

To meet the requirements of the first category of disability under the ADA, the individual must have an impairment which substantially limits a major life activity. The definition of “substantially limits” has been interpreted by the courts as meaning “significantly restricts.”

In amending the ADA, Congress believed this interpretation was too narrow and precluded too many individuals with disabilities from protection under the law. Rather than provide a new definition of “substantially limits,” Congress instead instructed the Equal Employment Opportunity Commission (EEOC) to revise its current regulations and provide a new, less stringent definition that is more in-line with the original intent of the ADA.

The EEOC has not yet provided the new definition.

Major Life Activities Expanded

Congress also broadened the type of activities that may be considered major life activities under the ADA. The Act now includes bodily functions as major life activities, including normal cell growth and bladder, bowel, brain, circulatory, digestive, endocrine, immune system, neurological, respiratory and reproductive functions.

The list of major life activities provided in the Act is not meant to be all-inclusive and the courts still may include other activities as major life activities entitled to protection under the law. Prior to the changes, courts were split over whether conditions that only affect internal bodily functions should be considered as major life activities.

Increased Protection for Those “Regarded As” Having a Disability

Congress also lowered the standard of proof for those who have faced discrimination in the workplace because they were regarded as having a disability by their employers. Now, in order to qualify under this category an individual only must prove that his or her employer took discriminatory action against him or her because the employer thought the employee had a disability. Before the changes, the employee also had to prove that the employer believed the disability substantially limited a major life activity.

The changes to the law, however, specifically state that they do not apply to transitory or minor impairments, which are those that are expected or actually last 6 months or less. Additionally, those who are only regarded as having a disability but do not actually have a disability are not entitled to reasonable accommodations at work under the ADA.

Beneficial Effect of Mitigating Measures No Longer Considered

Mitigating measures are steps that can be taken by an individual to reduce or eliminate the effect of a disability, like medication, devices or exercise. In a recent case, the US Supreme Court ruled that mitigating measures should be taken into account when determining whether or not an individual has a disability entitled to protection under the ADA. The high court’s ruling was at odds with EEOC rulings, which had held that mitigating measures should not be part of the consideration. As a result of the Supreme Court’s decision, many people who should have been protected under the ADA no longer had a condition which qualified as a disability under the Act.

The ADAAA rejects the Supreme Court’s ruling and returns to the EEOC’s interpretation. Mitigating measures which help (or benefit) a person’s condition may no longer be considered when determining whether or not an individual has a qualifying disability. However, mitigating measures that create additional limitations for those with disabling conditions may be considered.

There is one type of beneficial mitigating measure that may be considered: the use of ordinary eyeglasses or contact lenses.

Episodic and/or Conditions in Remission

The 2008 amendments also address the treatment of conditions that occur in episodes or go into remission. According to the changes, these conditions should be considered disabilities if they would substantially limit a major life activity when the conditions are active.

For example, an individual with rheumatoid arthritis may not suffer from the condition at all times. In determining whether this person has a qualified disability under the ADA, it would need to be decided if the person was substantially limited in a major life activity while the disease was active.

Conclusion

The ADAAA represents an important step by Congress to return to the original spirit and intent of the ADA to protect those with disabilities from discrimination. Before Congress took action, court rulings had severally limited the definition of disability in such a way that few qualified for protection under the Act.

It is important to note that there are still more changes to come to the ADA and implementing the 2008 amendments. The EEOC still has to promulgate new regulations for the changes, including issuing a new definition for “substantially limits.” Until this has been done, the full impact of the 2008 changes will not be realized.