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ADA Amendments Act Effective January 1, 2009! |
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| A more
employee-friendly set of disabilities rights became effective January 1,
2009. On September 25, 2008, President Bush signed the ADA Amendments Act
of 2008 (“Amendments”), revamping the Americans with Disabilities Act of
1990. AFGE supported enactment of the ADA Amendment Act of 2008. The ADA’s definition for “disability” has remained unchanged since 1990, and the amendments do not change it; “a disabled person has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment.” 42 U.S.C. § 12102. What has changed over the past 18 years is how judges interpret and apply that definition in specific cases. In the ADA Amendment Act, Congress finds that judges have misinterpreted the law, “narrowed the broad scope of protection intended to be afforded by ADA, thus eliminating protection for many individuals whom Congress intended to protect.” Congress rejected the Court’s narrow interpretation of the ADA and enacted a broader interpretation of the law by passing the ADA Amendment’s Act of 2008. The Act changes the focus of the analysis to whether discrimination occurred, rather than whether an individual is a qualified person. People with diabetes, cancer and bipolar disorders will be protected even when they are able to manage their chronic health conditions. However, the Act specifies that agencies are not required to accommodate employees who are “regarded as” individuals with disabilities. Also, the Act of 2008 shows Congress’ rejection of EEOC ADA regulations’ definition of the term “substantially limits,” and states that the definition must be construed in favor of broad coverage. The bill authorizes EEOC, DOJ and DOT to enact implementing regulations. The bill amends Section 705 of the Rehabilitation Act to conform to its provisions. Concern 1: Definition of “Substantially Limits” The Amendments find that the “significantly restricts” standard requires a greater degree of limitation than Congress had intended. Thus, the Amendments direct EEOC to revise its definition “to be consistent with this Act, including the amendments made by the Act.” Congress has not given EEOC a precise definition to put in-place of “significantly restricts” in its regulations. EEOC has yet to announce what revision it will make. Concern 2: Relevance of Mitigating Measures EEOC originally rejected employers’ arguments that an employee with a disability who could self-mitigate his problem was not legally disabled. EEOC’s position on this issue |
protected
these employees from discrimination. But that all changed in 1999 when the
Supreme Court decided Sutton v. United Airlines, Inc. (1999). The
Amendments largely fix this problem by stating that most ameliorative
effects of mitigating measures “shall” not be considered. The Amendments
provide a non-exhaustive list of measures that shall not be considered in
evaluating the underlying disabilities. The Amendments support EEOC’s position and provide only one exception here: individuals who require “ordinary eyeglasses or contact lenses” can not claim disability protection for their underlying ordinary vision problems. Amendments also explicitly provide that employers “shall” not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard is shown to be job-related and consistent with business necessity. Thus, such individuals still have a way to challenge these standards. Concern 3: Definition of Major Life Activities The ADA has always required that impairment must substantially limit one or more major life activities to rise to the level of disability. In Toyota, the Supreme Court interpreted this to mean that “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” The Amendments reject those standards and, provide a non-exhaustive list of major life activities in an effort to broaden the scope of what major life activities are covered: • Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. • A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
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