On September 25, 2008, the ADA Amendments Act of 2008 (“ADAAA” or “Act”) was signed into law.
The Act takes effect on January 1, 2009, and expands the scope of protection afforded to individuals under the ADA, as well as § 504 of the Rehabilitation Act. While the basic definition of “disability” remains the same, the ADAAA alters and enlarges the way its terms will be interpreted and applied.
The term “disability” means, with respect to an individual:
- a physical or mental impairment that substantially limits one or more major life activities;
- a record of such an impairment; or
- being regarded as having such impairment.
The ADAAA expressly overturns two significant Supreme Court decisions that had narrowly construed this definition of “disability.” As a whole, the Congressional guidance expressed in the ADAAA is to”provide broad coverage” for individuals with disabilities.
Sutton v. United Air Lines: Mitigating Measures and Present Condition
Prior to this amendment, the Supreme Court had interpreted the ADA to require the determination of whether an impairment substantially limits a major life activity to be made in consideration with the “ameliorative effects of mitigation measures.” Sutton v. United Air Lines, 527 U.S. 471 (1999). In other words, an impairment would not be considered to substantially limit a major life activity if it was controlled or eliminated with medication, equipment, or other measures. Lower courts, relying on this interpretation, held that whether a person with diabetes, for example, was “substantially limited” in a major life activity must be evaluated with regard to mitigating measures, such as insulin injections and diet control, and the person’s present condition. The ADAAA has explicitly overturned this aspect of Sutton, and under the new Act, only the ameliorative effects of ordinary eyeglasses or contact lenses may be considered in assessing whether an impairment substantially limits a major life activity.
The Act also clarifies that an impairment that is episodic or in remission may be considered a disability if it would substantially limit a major life activity when active. Previously, as stated in the Sutton case, a person was required to be “presently – not potentially or hypothetically” limited in a major life activity in order to demonstrate a disability. Again, many lower court rulings relied on this language to limit the application of the ADA. For example, in cases of individuals with severe or life-threatening allergies, courts have frequently held that if the person functions normally when not exposed to the allergen, the impairment does not qualify as a disability. These decisions are called into significant question under the new ADA amendments.
Toyota v. Williams: The Court’s Narrow Construction
The other major Supreme Court decision that was expressly disavowed by the ADAAA is Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002). The Court in Toyota held that the terms “substantially limit” and “major life activity” should be strictly construed and created a demanding standard for qualifying as disabled. This decision also held that “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” Congress unequivocally rejected the Supreme Court’s interpretation, stating that it created an “inappropriately high level of limitation” on coverage under the ADA and that “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”
EEOC Regulations In addition to overruling these two Supreme Court decisions, Congress found that the Equal Employment Opportunity Commission (EEOC) regulations defining the term “substantially limits” as “significantly restricted” set the bar too high. Congress instructed the EEOC to revise this portion of its current regulations. No action has yet been taken, however. According to the EEOC website, it “will be evaluating the impact of these changes on its enforcement guidances and other publications addressing the ADA.”
Specific Requirements of the ADA Amendments Act of 2008
- The term “disability” will be construed in favor of broad coverage for individuals.
- The beneficial effects of mitigating measures (other than ordinary eyeglasses and contact lenses) can no longer be considered when assessing whether an individual has a disability.
Mitigating measures include:
- Medication, medical supplies, equipment or appliances, low vision devises (excluding ordinary eyeglasses or contact lenses), prosthetics, hearing aids acochlear implants, mobility devices, or oxygen therapy;
- Assistive technology;
- Reasonable accommodations or auxiliary aids or services; or
- Learned behavioral or adaptive neurological modifications.
The Act specifically addresses only the “ameliorative effects” of mitigation. Presumably, if the mitigating measures have negative or limiting effects (e.g., side effects of medication), those could be considered in assessing an individual’s limitations.
- An impairment that substantially limits one major life activity need not also limit other major life activities in order to be a disability. Having one major life activity substantially limited is sufficient to constitute a disability.
- An impairment that is episodic or in remission is considered a disability if it would substantially limit a major life activity when active. The individual’s limitations must be evaluated as if the condition is in an active state.
The definition of “major life activity” is expanded by inclusion of two non-exhaustive lists:
- Seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
- Operation of major bodily functions, such as immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
An individual is “regarded as” having a disability if he or she establishes that a prohibited action was taken because of an actual or perceived impairment, whether or not that impairment limits or is perceived to limit a major life activity.
- The “regarded as” definition does not apply where the impairment is transitory (actual or expected duration of 6 months or less) and minor.
- An individual who is covered by the ADA solely by reason of being “regarded as” having a disability is not entitled to reasonable accommodations.
Not All Employment Rules Changed by the ADAAA
- Applicants and employees still must be able to perform “essential functions” of the job with or without “reasonable accommodations.”
- Applicants may be required to meet selection criteria, such as qualification standards and employment tests, so long as the selection criteria are job-related and consistent with business necessity.
- The initial burden of requesting an accommodation remains on the applicant or employee.
The process of determining whether an accommodation is “reasonable” has not changed.
- An employer may request reasonable documentation if the employee’s limitations and need for accommodation are not obvious.
- The accommodation must be effective and job-related, but it does not have to be the best accommodation available.
An accommodation is not “reasonable” if it imposes an “undue hardship” on the employer’s business. Whether an undue hardship would result is determined by considering several factors:
- Nature and cost of the accommodation.
- Overall financial resources of the specific facility and of the covered entity as a whole.
- Impact of the accommodation on the operation of the facility, including impact on other employees.
- Type of operation of the covered entity.
Effect on Section 504 Obligations for Educating Students with Disabilities
The definitions of “disability” and “individual with a disability” contained in the ADAAA have been explicitly inserted into the Rehabilitation Act of 1973. See 29 U.S.C. § 705 (9)(B), (20)(B). Therefore, effective January 1, 2009, all of the specific changes noted above will also apply to disability determinations made under Section 504. The Office for Civil Rights (OCR), which has responsibility for enforcing Section 504, has not yet offered specific guidance on the new law. However, public schools can expect to be impacted in the following ways:
- To qualify for accommodations under Section 504, a student still must be determined to have a disability. However, under the new definitions and rules of construction, “disability” will be interpreted broadly rather than narrowly. More students are likely to be eligible for Section 504 accommodations.
- The standard for considering whether a student’s impairment is a “substantial limitation” on a major life activity is now loosened, at least to some degree. Stringent tests such as “severely restricted,” “significantly restricted,” or “unable to perform” must be avoided.
- The universe of activities considered “major life activities” has been greatly expanded. A non-exclusive list of specific activities has been added, such as “reading,” “concentrating” and “thinking.” This may have special implications, for example, when assessing children with ADHD or learning disabilities. In addition, major life activities now expressly include the operation of “major bodily functions,” such as the immune system and the brain.
- Students with conditions that are episodic or in remission are more likely to qualify for § 504 services. Under the new law, a student’s impairment is assessed as if it were currently active for purposes of determining whether it substantially limits a major life activity.
- A student’s use of mitigating measures (other than ordinary eyeglasses and contact lenses) may no longer be considered when making an eligibility determination under § 504. In other words, whether a student has a disability for purposes of § 504 must be determined by considering the student’s condition without the beneficial mitigating effects of medication, aids or equipment, or even “learned behavioral modifications.”
- The ADAAA has no effect on the definition of disability under the Individuals with Disabilities Education Act (IDEA).
Under the ADA Amendments Act of 2008, the basic frameworks of the ADA and Section 504 have not changed. On the other hand, definitions of key terms and rules of construction have been broadened to reflect Congress’ intent to extend the protections of the ADA. As a result, school systems may face an increased number of requests for accommodations on the basis of disability under both the ADA and § 504.
Until the EEOC promulgates new regulations, until OCR issues opinions or guidance, and until courts have had the opportunity to apply the amendments to specific factual situations, a cautious approach is warranted. Determinations that an individual’s impairment is not a disability are likely to receive heightened scrutiny with passage of the ADAAA. As a practical matter, with a more inclusive definition of disability, the emphasis is likely to shift from the question “Does the employee or student have a disability?” to “What is the proper response to the employee’s or student’s impairment?”
Please contact our office if you would like assistance in reviewing your current policies and procedures in light of these important changes to the law.