WORKPLACE LAW - Americans with Disabilities
Amendments Act of 2008

Question:

I read about a new law that changes the Americans with Disabilities Act. Does this affect my business or my obligations to disabled employees or applicants for employment?

Answer:

President Bush signed the ADA Amendments Act of 2008 into law September 25, 2008. These amendments were unanimously approved by the Senate and the House, and were needed 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 available under the ADA. These protections had been weakened by court decisions, and Congress acted to restore the intent and rights provided by the ADA.

The Amendments are effective Jan. 1, 2009. Among other things, the ADA prohibits covered employers from discriminating against a qualified individual with a disability on the basis of the disability in regard to terms, conditions, and privileges of employment. Under the ADA, the term “disability” means “a physical or mental impairment that substantially limits one or more major life activities of such individual, a record of such an impairment, or being regarded as having such an impairment.”

The Amendments clarify who is a “qualified individual with a disability,” provide guidance concerning when an impairment is a disability, and what it means to substantially limit a major life activity under the ADA. Keep in mind that under California’s Fair Employment and Housing Act, the meaning of “disability” is much broader than under federal law, so these changes to the ADA may not constitute a change for California employers, who already provide broader protection to disabled employees than is required under federal law.

The ADA Amendments add guidance for interpreting the terms "substantially limits" and "major life activity." The Amendments state that major life activities include, but are not limited to, 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.

The ADA Amendments also provide that mitigating measures cannot be considered in determining whether an individual has a disability. This means that if an individual has a vision impairment that can be corrected with eyeglasses, the individual would still qualify as “disabled” because without the mitigating measure of eyeglasses, the major life activity of seeing would be substantially limited. This is consistent with California’s definition of disability.
Other new rules of construction of the term “disability” contained in the Amendments include:

  • Providing that the term “disability” must be construed in favor of broad coverage of individuals.
  • Clarifying that an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
  • Explaining that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Finally, the Amendments state that an individual meets the requirement of “being regarded as having such an impairment” if the individual has been discriminated against in violation of the ADA because of an actual or perceived physical or mental impairment whether or not the impairment actually limits or is perceived to limit a major life activity. However, an individual is not regarded as having an impairment if the impairment is transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

As a California employer, the more generous protections provided to employees under the Fair Employment and Housing Act will apply to your business. However, the ADA Amendments are important for cases brought in federal court, and for providing guidance in specific cases
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