President Bush recently signed the Americans with Disabilities Amendment Act of 2008 (ADAAA), which will become effective on January 1, 2009. The ADAAA will have a major impact on new cases filed after this date. Congress's intent in passing the ADAAA is to increase the coverage to additional employees. I anticipate that the ADAAA will result in a spike in new lawsuits being filed.
Some of the major changes of the ADAAA are:
1. Pending cases. Cases pending as of December 31, 2008 will be covered under the existing ADA and various court decisions.
2. Supreme Court Decisions. The Supreme Court's narrow interpretation of "disability" has been rejected by Congress, with the ADAAA stating that "substantially limits" shall be interpreted consistent with the findings and purposes of the ADA.
3. Mitigating Measures. The ADAAA, with the exception of "ordinary eyeglasses or contact lenses" specifically sets forth that the effects of mitigating measures should not be considered in determining whether or not an individual has an impairment that substantially limits major life activity.
4. Substantially Limits. Congress specifically rejected the Supreme Court's narrow definition of "substantially limits" in Toyota Motor Mfg. Kentucky, Inc. v. Williams and instructs the courts to interpret "substantially limits" consistently with the findings and purposes of the ADA.
5. Major Life Activity. The ADAAA sets forth a non-exhaustive list of major life activities including but 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." The ADAAA also sets forth as a major life activity, major bodily functions, including but not limited to "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions."
6. New Regulations. The ADAAA grants the EEOC, the Attorney General and Secretary of Transportation the authority to issue regulations interpreting the definition of disability under the ADA.
Practice Pointers
1. Now is the time to educate yourself, your HR Department and your supervisory employees as to the impact of the ADAAA.
2. Review and amend as necessary the job descriptions and essential functions of the jobs at your place of business.
3. For any employee who has requested an accommodation under the ADA, whether it was granted or not, reengage in the interactive process in light of the ADAAA, to ensure that those who are entitled to a reasonable accommodation receive it.
4. Consult with your employment attorney concerning how the ADAAA will impact your company.
Of course, I am available to help you should the need arise. I was invited to participate at a seminar for Sterling Education Service that took place on November 19, 2008 in Birmingham. My presentation addressed the ADAAA. To view my written handout, click here: ADAAA Handout
