ADA Amendments Act: Wow!
Now that the dust has settled a bit after the astonishingly easy enactment of the ADA Amendments Act, let’s take an in depth look at this add-on to the Americans with Disabilities Act (ADA). It doesn’t become effective until January 1, 2009, but you’ll need as much time as you can find to get ready for its impact.
When the Americans with Disabilities Act was enacted in the early 90s, there were dire predictions that all employees would be disabled under the law, that everyone would be entitled to a reasonable accommodation, and that disability discrimination cases would overtake all other kinds of discrimination claims. Those predictions turned out to be overstated. It’s probably time to make them again, and they’re much more likely to come true this time.
The ADA defined disability as a physical or mental impairment that substantially limits a major life activity. Thus, you had a definition that was somewhat undefined. The definition contained terms that needed their own definitions. Although all new laws are subject to interpretation by the courts, this was especially true with the ADA. When the U.S. Supreme Court finally started interpreting the ADA, many of the law’s original proponents began complaining that the Court was misconstruing and narrowing the law in ways not intended by Congress.
In the ADA Amendments Act, Congress pointedly chastises the Supreme Court for misinterpreting the ADA, makes clear that this new Act reverses Supreme Court decisions, and establishes broad parameters for how the law is to be interpreted in the future. The new Act is, of course, subject to interpretation by the courts (ultimately the Supreme Court), since it also contains some terms that lack clarity. But the ADA as now amended is sure to have a dramatic effect on disability discrimination cases.
Let’s take the change the new Act makes with the term major life activities. The Act demands that courts consider its “Findings” and “Purposes” sections, which state that “major life activities” and other terms in the ADA shouldn’t be interpreted strictly and that the “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” Going further, the Act includes a nonexhaustive list of activities that constitute major life activities, including caring for oneself; bending; performing manual tasks; speaking; seeing; breathing; hearing; learning; eating; reading; sleeping; concentrating; walking; thinking; standing; lifting; communicating; and working. Are you beginning to get the picture? If an employee can’t perform one of these activities, he/she is automatically disabled. Wow!
We’re just beginning, however. The Act also includes a subset of major life activities called “major bodily functions,” including functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. There is no requirement that the functions have any relation to the ability to perform a job. Indeed, some are completely unrelated to work. If these functions are substantially impaired, however, you have a disability.
To counteract Supreme Court rulings that denied disability status to diseases or impairments in remission or ameliorated by medicine or medical treatment, the new Act says that an episodic impairment or one in remission is still a disability if it would substantially limit a major life activity “when active.” The new Act says that a disability is to be determined without regard to the ameliorative effects of mitigating measures such as “medication, medical supplies, equipment, or appliances, low-vision devices . . . prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; auxiliary aids or services; or learned behavioral or adaptive neurological modifications.” The only exceptions are eyeglasses and contact lenses. Wow!
So, someone with diabetes, for example, would be disabled without having to demonstrate that at a given moment in time, the disease was or wasn’t controlled by medication. Moreover, a disease or impairment in remission and having no impact on an individual would be a disability because it could still manifest itself at some future time. Under the new Act, no one is ever cured. The disability is continuous. Wow!
When the ADA was originally enacted, there was much concern that the “regarded as” definition of disability would open Pandora’s box. It didn’t because of court rulings that said it’s not enough to prove you were regarded as having an impairment, you also had to prove that what you were regarded as having would substantially limit a major life activity. Now, Pandora’s box will be opened. The new Act says if an employee has been regarded as having an actual or perceived physical or mental impairment, the employee is disabled “whether or not the impairment limits or is perceived to limit a major life activity.” Wow!
This new Act ended up sailing through both houses of Congress with almost no opposition. It perhaps serves as a precursor to what is just around the corner. As noted previously on this blog, there are a number of pending pieces of legislation that could have an explosive impact on labor and employment law: Employee Free Choice Act; Civil Rights Act of 2008; FOREWARN Act; Fair Pay Restoration Act; Healthy Families Act; and the Employee Non-Discrimination Act, an act making sexual orientation a protected class. Wow!
All we know now is that the realm of “the disabled” is about to be significantly enlarged. While it may be incorrect to say the new Act makes everyone disabled, we’ll be much closer to that point than we’ve ever been. Reasonable accommodation requests will become more frequent and more complicated. Disability discrimination charges and litigation will increase dramatically. Given the new Act’s language, it’ll be difficult for courts to dismiss these cases without letting a jury decide them.
In many respects, we’re starting all over with disability discrimination. If the Supreme Court has, in the past, given employers an advantage in these cases, the advantage is about to be given to employees. Hold on to your hats!
Want to learn about the changes in the ADA and how it interacts with disability discrimination laws in your state? Check out these ADA Master Class workshops in your state.
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About Chris Parker
Chris Parker's practice focuses on the representation and counseling of companies in matters pertaining to the workplace and the protection of their intellectual property and trade secrets. In addition to serving as an advocate for clients, Mr. Parker is also trained as a mediator and frequently serves as a third-party neutral.
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About Jimmy Daniel
Jimmy Daniel provides counseling to businesses of all sizes related to the employment relationship. He assists in the drafting of employment agreements, policies, and handbooks, as well as provides guidance related to compliance with federal, state, and local legislation such as the Fair Labor Standards Act and the Family and Medical Leave Act.
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About Larry Bridgesmith
While serving in an Of Counsel relationship with the firm, Mr. Bridgesmith also serves as the Executive Director at the Institute for Conflict Resolution at Lipscomb University and as an officer and principal in Strategic Resolutions Group, LLC. In these roles, Mr. Bridgesmith brings over 30 years of legal experience in dispute resolution and innovative workplace strategies to clients, students and business entities alike.
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Call me crazy,… wait, that didn’t sound right.
The ADA was one of the first laws I ever had to introduce as an Employee Relations guy in the civilian world. I was just out of the Navy.
It was hard for me at the time (and for many) to wrap my arms around it and “teach it” sufficiently. But this new stuff is completely ridiculous. Our government hard at work seeing to it that no hard work will be able to get done.
When I was in the Navy, we could send any sailor to see a shrink if we even had an inkling he/she needed some help or was off balance in some way. We ordered them there!
Let the nightmare begin!
Would love some guidance on how to teach about the new law.
Wow! Indeed. E.
Before this new law (effective 1-1-09), it was easy to say to HR, supervisors and managers that you shouldn’t assume that anyone who says he/she has a disabiitity does. It’s the employee’s responsibility to prove a disability. Because of the Supreme Court rulings the ADA Amendments Act overturns, you could be sure in a high percentage of situations that the employee didn’t have a disability. While I would still say that to HR, supervisors and managers, the truth is that now an employee is much more likely to have a disability, which means employers will have to start jumping through ADA hoops much earlier and much more often. In terms of training, that’s a point that should be made. Until the courts begin interpreting the new law and we know how broad it’s going to be interpreted, I think that managers and supervisors are going to have to be more diligent in involving HR in the matters from the very beginning, and HR is going to have to involve its outside or inside counsel very early to make a determination as to how to proceed. Whether this ends up being a nightmare is up to the courts, and it’ll take a while to see. It certainly has the potential of being a nightmare. I think you can use my original post to do some training and then be on the alert for any court decisions once the law becomes effective.
“When the Americans with Disabilities Act was enacted in the early 90s, there were dire predictions that all employees would be disabled under the law,”
Well, in the case of the Long Island Railroad, that has certainly proven to be true!
Pete, are you saying that the LIR was ahead of its time?
I think the LIR and the railroad benefits board needs to undergo some oversight.
On another note, you write: “Going further, the Act includes a nonexhaustive list of activities that constitute major life activities, including caring for oneself; … breathing … If an employee can’t perform one of these activities, he/she is automatically disabled. Wow!”
I would argue that an employee who cannot breathe may be permanently disabled in the most profound way, although not ineligible to vote in a Chicago mayoral election.
Pete, Pete, Pete,
As always, you make good points. And you raise the question, “Does the ADA Amendmnets Act protect the dead?”
Wow!
SHRM heartily backed this new legislation. After reading your article, I’m surprised. What gives?
Beats me. The U.S. Chamber also backed the legislation. It was passed overwhelmingly in both Houses of Congress.
I don’t know if there was reluctance to oppose the law for fear of being labeled anti-disabled or what. If there was concern that the U.S. Supreme Court had gone too far in restricting the original ADA, changes could’ve been made without going so far as to open Pandora’s box.
Of course, we won’t know exactly what will happen until courts begin interpreting the new law after January 1, but there’s every reason to believe, based on the law’s language, that disability discrimination charges and lawsuits will overtake all other kinds of discrimination charges and lawsuits combined.
Thanks for your comment.
Your use of one disability ( diabetes) is not a very good arguement for a controlled disability. Try to use that same arguement using epilepsy for example. Persons with epilepsy can still function quite nicely when medicated. But, epilepsy is never really fully controlled. Even medicated you can have a breakthrough seizure. Also keep in mind that there are various degrees of seizures i.e. staring into space all the way to grand mal. Tevelivision has conditioned us to believe all people that have seizures are going to be flopping on the floor and swallow our tougues.
Joe,
Thanks for your comment. While I think diabetes is a good example of a controlled disability that shouldn’t be covered (but probably will be come January 1) by the ADA, the epilepsy condition or seizure disorder is a good example of what might very well never be fully controlled. In any event, there’s a big difference between certain types of illnesses, medical conditions and disabilities. To say, however, that all of these conditions must be considered disabiities regardless of remediation seems out of bounds and lessens the significance of conditions like epilepsy.
Having had a grand mal seizure several years ago, I’m keenly aware of how scary seizures are, how many different kinds there are, and how one lives with some uncertainty about when a seizure might occur. Fortunately, mine appears to have been a one time occurrence. Thus, I don’t consider myself to be disabled as a result of the seizure. I’m sure I would feel differently if I had had more than one or if I had a condition like epilepsy.
Thanks again for weighing in. It’ll be interesting to see what happens once the ADA Amendments Act takes effect.
John
Having lived with seizures and kept a job for 20 years while trying to keep Grand Mal seizures as well as tonic clonic and others while sleeping under control I can tell you it is just short of walking on a wire without a saftey net. I did eventually get a home office however waking up alone after a seizure is traumatic and dangerous. Something more needs to be done in this country, we have addressed every disease including ED. Why is it that people with seizures are still being burned at the stake as far as federal assistance? On insurance Meds/doc 1/4 of pay.
Nancy,
I admire your perserverance.
I’m not sure of the answer to your question. My guess is that seizures aren’t experienced by a large percentage of the population. If that’s true and since they are scary to people (even people who haven’t had one), it is perhaps easier for there to be a hands off approach.
Sometimes, it takes a long time for certain medical conditions to be dealt with as they should be. The more people who’ve been affected by them speak out, the more likely it is that these conditions will receive the attention they deserve.
John