President Signs ADA Amendments Act of 2008 Into Law

With former President Bush in attendance, President George W. Bush signed the ADA Amendments Act of 2008 into law on September 25, 2008. The ADA Amendments Act, P.L. 110-325, amends the Americans with Disabilities Act, which was signed by President George H.W. Bush in July 1990. The ADA is the nation's first comprehensive civil rights law prohibiting discrimination against individuals with disabilities in employment, public services, public accommodations and telecommunications, by restoring the ADA's original intent and protections. The ADAAA states that the definition of disability should be construed in favor of broad coverage of individuals under the ADA, to the maximum extent permitted by the terms of the ADA. While the ADAAA retains the ADA's existing definition of "disability," the ADAAA amends the ADA to further define and clarify three critical terms within the existing definition ("substantially limits," "major life activities," and "regarded as" having such impairment) and, under the rules of construction for the definition, adds several standards that must be applied when considering the definition of "disability." In particular, the law rejects US Supreme Court precedent holding that the terms "substantially" and "major" in the definition of disability must be "be interpreted strictly to create a demanding standard for qualifying as disabled," as well as the Court's interpretation that "substantially limits" means "prevents or severely restricts." Instead, the bill reiterates that whether an individual's activities are limited in condition, duration and manner, is a useful test.

For the first time, the ADAAA also directly places in the ADA itself a non-exhaustive list of major life activities, including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The law also expands the category of major life activities to include the operation of major bodily functions. The ADAAA also removes from the "regarded as" prong of the disability definition the requirement that an individual demonstrate that he or she has, or is perceived to have, an impairment that substantially limits a major life activity. Under the ADAAA, individuals can establish they are "regarded as" disabled by showing that they have been subjected to adverse action under the ADA because of an actual or perceived physical or mental impairment. The definition is subject to two important limitations. First, individuals with impairments that are transitory and minor are excluded from eligibility for the protections of the ADA under the "regarded as" prong, and second, the ADAAA relieves entities covered under the ADA from the obligation and responsibility to provide reasonable accommodations and reasonable modifications to those who qualify for coverage under the ADA solely by being "regarded as" disabled. The law also prohibits consideration of mitigating measures such as medication, assistive technology, accommodations, or modifications when determining if an impairment constitutes a disability. Ordinary eyeglasses and contact lenses are excluded from this prohibition, however employers may not screen out people with ordinary eyeglasses and contact lenses unless there is a business necessity. The law also adds language for the education community, reiterating the current statutory exception that academic institutions, including postsecondary education institutions, are not required to make reasonable modifications to their policies, practices or procedures that fundamentally alter the nature of their programs or when the academic requirements are essential to a program of study or to meet licensing prerequisites.

The ADAAA takes effect January 1, 2009. The Equal Employment Opportunity Commission is tasked with revising its regulations relating to changes made by the Act.

Reprinted with permission. © CCH

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