Tonkon

Legal Updates & Alerts

Proposed Amendments to the ADA

September 23, 2008
Last week, the Senate and the House of Representatives passed a bill that significantly expands workplace protections for Americans with disabilities. The bill now goes to the President, who has said that he will sign it. The proposed bill, which would become effective on January 1, 2009, broadens the criteria that determine whether an individual is disabled under the ADA. In addition, the bill eliminates the effect of mitigating measures in determining disability status.

An individual is entitled to ADA protection if he or she has a physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment, or is regarded as having such an impairment. Courts have interpreted the phrase "substantially limits" narrowly. In determining whether an individual is disabled, courts consider the effect of corrective and mitigating measures (such as anti-seizure drugs for epileptics or glasses for persons with vision problems).

The proposed bill changes this landscape substantially. It states that courts have misapplied the definition of a disabled individual, casting out of ADA's protective borders people with a range of substantially limiting impairments. It also requires that the definition of disability be construed in favor of broad coverage, to the maximum extent permitted by law. Finally, it directs the courts to determine whether an individual is disabled without considering mitigating measures.

The proposed bill would substantially alter the face of ADA litigation. More individuals will meet the definition of disability. Even individuals who, because of medication or other corrective measures, can perform the essential functions of their job will now qualify as "disabled" and be eligible for ADA protection. Because of the looser definition of "disability," many more ADA claims will go to trial, instead of being resolved at summary judgment. The bill also may present compliance challenges for employers who may receive more accommodation requests, including novel ones corresponding to a new class of disabilities previously unrecognized.

We will let you know when the bill is signed into law. In addition, we will apprise you on whether you should revise your current policies or job descriptions to safeguard against violations of the new bill.