The Americans With Disabilities Act is
Amended
with
Significant
Changes
Affecting Employers
Lawyers for Employers ®
Breaking Developments In Labor and Employment Law
09/25/08
On September 25, 2008, President Bush signed Senate Bill 3406, the “ADA Amendments Act,”
into law. The ADA Amendments Act (“Amendments”), which goes into effect January 1, 2009,
presents new burdens for employers as it may increase the scope of who is “disabled” under the
law and an employer’s obligations to those employees.
The stated purpose of the Amendments is to reject the standards enunciated in two U.S. Supreme
Court cases, Sutton v. United Airlines, Inc., and Toyota Manufacturing Kentucky, Inc., v.
Williams and to “carry out the ADA’s objectives of providing ‘a clear and comprehensive
national mandate for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable
standards addressing discrimination’ by reinstating a broad scope of protection to be available
under the ADA.”
Significant changes brought about by the Amendments include the following:
1. The Amendments broaden the scope of who may be “disabled” by stating that an “impairment
that is episodic or in remission is a disability if it would substantially limit a major life activity
when active.” This means that employers must continue to engage in the interactive process with
(and potentially accommodate) employees who suffer from, but may not currently be
experiencing, an impairment related to their health condition.
2. The Amendments state that “An impairment that substantially limits one major life activity
need not limit other major life activities in order to be considered a disability.” In other words,
impairment of a single major life activity, such as sleeping, may render an individual disabled,
even if he or she can still accomplish a broad range of other major life activities like walking,
talking, thinking, lifting and eating.
3. The Amendments directly prohibit the consideration of mitigating or ameliorative measures
(such as medication, prosthesis, hearing aids, etc.) in determining whether such individual is
disabled. The Amendments do allow, however, consideration of the ameliorative effects of
“ordinary eyeglasses or contact lenses” intended to fully correct visual acuity or eliminate
refractive error.
4. The Amendments state that an individual is “regarded as disabled” if the individual
“establishes that he or she has been subjected to an action prohibited under the Act 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.” This means that an employee may state a claim under
the Americans With Disabilities Act (“ADA”) if he or she was regarded by the employer as
having an impairment, even if the employer did not regard such impairment as a “disability”
under the ADA and the impairment was not, in fact, a “disability” under the ADA. The only
exception is that a person is not “regarded as disabled” for impairments that are transitory and
minor in nature (i.e., impairments that last or are expected to last six months or less).
Where Do Employers Go From Here?
Given the broad expansion of the definition of disability, anytime an applicant or employee has
an impairment, the applicability of the ADA should be considered. An employer should not
make any employment decision that arguably could have been impacted by or based on an
individual’s impairment without first considering the applicability of these new standards. In
addition, the Amendments make clear that employers will be required to engage in an interactive
process to establish a reasonable accommodation for a far broader range of impairments than
previously required.
Note, the ADA and the Amendments apply to employers with 15 or more employees. Employers
in Oregon and Alaska whose disability laws currently track the ADA will experience the full
impact of the changes introduced by the Amendments. Employers in Washington, who have
eight employees or more, are already required to comply with state disability laws that contain
an expanded definition of “disability,” as well as very broad accommodation requirements.
For more information, please contact the Labor and Employment Law Practice Group at Lane
Powell:
206.223.7000 Seattle
503.778.2100 Portland
employlaw@lanepowell.com
www.lanepowell.com
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