By: Daniel Block
Amendments to the Americans with Disabilities Act of 1990 (the “ADA”) became effective in 2009, and the amendments made major changes to the ADA that employers with 15 or more employees should be familiar with.
The most significant changes to the ADA greatly broaden the scope of job applicants and employees who may be considered “disabled.” To be considered “disabled” under the ADA, a person must have a physical or mental impairment that substantially limits one or more “major life activities” of the individual, have a record of that type of impairment, or be regarded as having that type of impairment.
Prior U. S. Supreme Court decisions interpreting the ADA had (1) limited the definition of “major life activities” to one of “central importance to most people’s daily lives”; and (2) stated that the determination of whether an impairment “substantially limits” a major life activity is based on the ameliorative effects of mitigating measures, such as medications. Because of those U. S. Supreme Court decisions and other decisions by lower courts, a fairly limited range of activities were considered to be “major life activities” and many impairments were successfully mitigated. Thus, many people who had a physical or mental impairment, and who had not been hired for open positions, had been terminated from their jobs, or had other adverse employment actions taken against them did not qualify for the protection of the ADA.
Because of the perception among members of Congress and others that the scope of persons protected by the ADA had been narrowed excessively by court decisions interpreting the ADA, and narrowed far beyond the original intent of Congress, members of Congress worked with representatives of employees and employers to craft amendments to the ADA to try to bring it in line with the original intent of Congress. Unfortunately, as often seems to happen when Congress tries to fix a problem in the law, Congress went overboard in modifying the ADA.
The ADA Amendments Act of 2008 (the “ADA Amendments”), among other changes, added to the ADA a definition of “major life activities.” The definition says 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.
Note the language, “but not limited to.” That means that any other tasks, besides those in that extensive list, can also qualify as “major life activities.”
The amendment also states that major life activities include “the operation of a major bodily function,” with a long, non-exclusive, list of functions.
In other words, potentially every human activity is a “major life activity.”
The Amendments Act also added the following admonitions: (1) “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active”; and (2) “The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” The Amendments Act contains a list of examples of mitigating measures that are not to be considered in the determination of whether an individual is “disabled.” Those examples include “medications, medical supplies, equipment, or appliances”; the use of “assistive technology”; and “learned behavioral or adaptive neurological modifications.” The only types of mitigating measures that can be considered in the determination of whether an individual is disabled are “ordinary eyeglasses or contact lenses”; but not “low-vision devices.”
Why, one might wonder, can ordinary eyeglasses and contact lenses be considered as mitigating measures, but “low-vision devices,” which are “devices that magnify, enhance, or otherwise augment a visual image,” cannot be considered? And, what about laser eye surgery? Apparently that cannot be considered as a mitigating measure. What is the logic there? And, why are ordinary eyeglasses and contact lenses to be considered, but not hearing aids?
Some federal courts in decisions in late 2008 and early 2009 suggested that had the amendments to the ADA been in effect of the date the claim was filed, the outcome of the case would have been different, because the employee would likely have been considered disabled. Other courts issuing decisions in 2009 have applied the amended version of the ADA to find the employee was disabled even though the employee would not have been deemed disabled under the original version of the ADA.
One might come to the conclusion that every applicant and every employee is considered “disabled” under the ADA as amended. That is not the correct conclusion, because individuals who are completely healthy, except possibly that they need to wear “ordinary” glasses or contact lenses, are not disabled. Nevertheless, employers are advised to consider that every applicant and every employee could now be “disabled” under the law. If an applicant or employee has a disability, the employer may need to make a “reasonable accommodation” for the applicant or employee to enable him or her to perform a particular job.
If the impairment is in remission, or if a mitigating measure that cannot be considered in the determination of whether an individual is “disabled” exists, one might ask why these changes should be of concern to employers. Under these conditions, even though the applicant or employee is “disabled” the disability will not be apparent to the employer and/or it will not affect the individual’s performance, so the employer would not be refusing to hire the individual, or terminating or taking other adverse employment action against the employee, because of the disability—and therefore, the employer should have no legal concern, right? Well, not exactly.
Even though an employer did not refuse to hire an applicant or it did not terminate or take other adverse employment action against an employee because of a disability, in a situation where one of those events occurs the individual involved might disagree with the employer. Then, that person is more likely to assert, and will be more likely to prevail on, a claim of disability discrimination than prior to ADA Amendments being enacted.
As the date of this article, the Equal Employment Opportunity Commission is in the process of preparing regulations to provide further guidance on the ADA as amended.
The bottom line here is that the risk of a claim by job applicants and employees of illegal discrimination by employers who take certain actions against them even for legitimate, nondiscriminatory reasons has increased because of the ADA Amendments.