The BP Blast!: A California Employment Law Blog

PRESIDENT BUSH SIGNS LEGISLATIONAMENDING AND GREATLY EXPANDING THE ADA

On Thursday, September 25, 2008 President Bush signed legislation significantly amending the Americans with Disabilities Act. Some of the more significant changes:
Expanded Definition of Major Life ActivitiesA disability is defined as a physical or mental condition that substantially limits a "major life activity." The ADA currently does not include a definition of "major life activities." The EEOC regulations provide examples, such as: "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." President Bush's amendments now specifically incorporate these regulations into the ADA by the amendment. The amendment goes farther and also adds "major bodily functions" such as "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." This will most likely lead to a substantial expansion of workers considered disabled under federal law. Now, conditions such as high blood pressure, asthma, and other conditions may be considered disabilities under the ADA. Finally, the amendment also expands the definition of disability to include a condition that is in remission or that is episodic, if it would otherwise substantially limit a major life activity when active.

"Substantially Limits" Liberalized

A disability must "substantially limit" a major life activity. The Supreme Court and the EEOC has set a relatively high standard for"substantially limits." 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. The new ADA amendment categorically rejects this standard.

"Regarded As" Restricted

The ADA protects workers who, while not actually disabled, are regarded as disabled by the employer. The amendment excludes from "regarded as" claims minor/transitory conditions lasting six months or less.

Disregard of Mitigating Measures

U.S. Supreme Court decisions have held that mitigating measures, such as prosthetic devices, should be taken into account when determining whether the workers are disabled. For example, Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), involved myopic twin sisters who were rejected for employment by an airline because of their poor vision, although their vision was correctable with prescription lenses. The airline's policy required "uncorrected visual acuity" at a certain level, which the sisters did not have. The Supreme Court held that because the sisters' vision was correctable, they did not satisfy the ADA definition of "disability" and therefore could not make out a claim for discrimination.The ADA amendment rejects the Supreme Court's interpretation of the ADA. Now, a worker may qualify as disabled under the ADA regardless of whether corrective measures mitigate their condition. Mitigating measures that will not be considered under the new amendments to the ADA include items such as medication, hearing aids and cochlear implants, low-vision devices (which do not include ordinary eyeglasses or contact lenses), mobility devices, prosthetics including limbs and devices, or oxygen therapy equipment and supplies.

Conclusion

In California, a more liberal definition of disability is already in place. For example, the law in California, under the Fair Employment and Housing Act, already includes many of the provisions found in the ADA amendment.It will be some time before the effects of the ADA amendment can be gauged. The EEOC may issue new regulations or guides, which may help employers comply with the new standards. Ultimately, an increase in federal disability law litigation can probably be expected.