Congress Passes New Amendments to the Americans with Disabilities Act

On January 1, 2009, new amendments to the Americans with Disabilities Act (“ADA”) will become effective.[1] If your business has 15 or more employees, these amendments could change the way you currently handle leave requests and other requests for accommodation.

The ADA basically requires employers to reasonably accommodate disabled employees. A “disability” under the ADA is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.”[2] Over the years, the United States Supreme Court has narrowed that definition in two important ways. First, in Sutton v. United Airlines, the Court held that determination of whether an employer is “disabled” under the ADA must take “mitigating measures” into account.[3] For example, if an employee can hear perfectly with a hearing aid, then his hearing was not considered “substantially impaired.” Or, if an employee’s condition is controlled by medication, the condition was not a “disability.” Second, in Toyota Manufacturing of Kentucky, Inc. v. Williams, the Court stated that the definition of “disability” must be strictly construed and a person “must have an impairment that prevents or severely restricts him or her from doing activities that are of central importance to most people’s daily lives.”[4]

The new ADA amendments are the Congressional response to the Sutton and Williams decisions. While the amendments leave the ADA’s definition of “disability” in tact, they adopt rules of construction” that broaden the definition beyond its former application. Specifically, the amendments state that the definition “shall be construed in favor of broad coverage” and that “substantially limits” shall be interpreted consistent with “findings and purpose” of amendments, that is, to reject Sutton and Williams and “reinstate a broad scope of protection under the ADA.” Therefore: 1) an impairment that limits one activity is a “disability”; 2) an impairment that is episodic or in remission is a disability if it is substantially limiting when active (this specifically applies to those with cancer); 3) an impairment is to be considered without reference to mitigating measures (but there is an exception for glasses and contact lenses, therefore nearsighted persons who wear corrective lenses are not “disabled”); and 4) “major bodily functions” are “major life activities,” including immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, respiratory, and reproductive functions. However, the ADA as amended does not protect those with “transitory” (actual or expected duration of 6 months or less) or “minor” conditions.

So, what does it all mean? Clearly persons who were not “disabled” under the former ADA may now fall under the amended definition. Employers should therefore review how they evaluate requests for accommodation from employees. For example, employers may now need to accommodate reasonable leave requests for fertility treatments, being as “reproductive functions” are now a “major life activity.” And it is now more important than ever to document any discussions regarding accommodation, as courts look to whether there was an open and ongoing conversation about accommodation in reviewing how requests for accommodations were handled. Employers should also consider revising medical certification forms to request that a physician specify whether an employee’s condition is “transitory” or “minor.” The Equal Opportunity Commission is expected to issue new regulations for applying these amendments in 2009, which will provide additional guidance on how to modify practices and procedures.