Last week, Congress approved important legislation, the ADA Amendments Act of 2008 (S. 3406), to amend the Americans with Disabilities Act to provide broader protections for disabled workers and turn back the clock on Supreme Court rulings that Congress deemed too restrictive of disabled employees’ rights. President Bush is expected to sign the Act, and the changes would take effect on Jan. 1, 2009.
We’ll have complete coverage in an upcoming issue of the California Employer Advisor. And in the meantime, here’s an overview of the highlights of the ADA Amendments Act:
Mitigating measures. The Act provides that the determination of whether an impairment substantially limits a major life activity, such that it rises to the level of a disability, must be made without considering the ameliorative effects of mitigating measures. Note that the changes bring the ADA closer to the standards under California’s disability bias law, the Fair Employment and Housing Act (FEHA), which broadly provides that mitigating measures cannot be considered in determining whether a major life activity is limited. (Click here for an article explaining the differences between FEHA and existing ADA disability protections.)
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Major life activities. The Act adds to the ADA examples of major life activities, and clarifies that an impairment that substantially limits one major life activity need not limit others to be considered a disability. The legislation also lowers the bar for ADA coverage by rejecting a previous Supreme Court decision and a current Equal Employment Opportunity Commission regulation that construe “substantially limits” to mean significantly or severely restricted. (Keep in mind that the California FEHA already uses a looser standard, requiring only that a major life activity be “limited.”)
Remission. Under the Act, an impairment that’s in remission or episodic will qualify as a disability if it “would substantially limit a major life activity.”
“Regarded as.” The legislation clarifies the standard for “being regarded as disabled.” An individual will have to show only that he or she was discriminated against because of an actual or perceived impairment, even if the impairment doesn’t limit or isn’t perceived to limit a major life activity. And, impairments that are transitory or minor (that is, with an actual or expected duration of six months or less) won’t qualify for “regarded as” protection.
Claims of “no disability.” The Act provides that the ADA doesn’t cover claims by nondisabled individuals contending discrimination because of the lack of a disability.
Broad construction. The Act specifies that the definitions of disability and substantially limited are meant to be construed in favor of broad coverage of individuals under the ADA.