Congress Expands Coverage of the ADA

As expected, Congress gave final approval on Wednesday, September 18, 2008, to a bi-partisan bill which greatly expands the coverage of the Americans with Disabilities Act (ADA).  The amendment specifically overturns several Supreme Court decisions that had recognized what many employers believed to be common-sense limitations to the scope of the ADA.  When President Bush signs the amendment into law, as he has promised to do, those limitations will be gone.  Many not considered “disabled” today will be considered disabled, and protected under the ADA, tomorrow.  Well, maybe not tomorrow, but certainly after the amendment takes effect on January 1, 2009.

Among the Supreme Court decisions the amendment overturns are Sutton v. United Air Lines, 527 U.S. 184 (1999), Murphy v. United Parcel Service Inc., 527 U.S. 516 (1999), and Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999), in which the Court decided that “mitigating measures” that help individuals control or cope with impairments must be considered in determining whether an individual is disabled within the meaning of the ADA.  As Congress saw it, these decisions left many it intended to protect, including some diabetics and epileptics, unprotected under the ADA.  No longer.  The amendment provides that courts should not consider the effects of mitigating measures in determining whether a person is disabled within the meaning of the ADA.

Similarly, the amendments neuter the Supreme Court’s decision in Toyota Motor Mfg. Co. of Ky. v. Williams, 534 U.S. 184 (2002), in which the Court made it tougher for an employee to establish that an impairment “substantially limited” him in a major life activity.  The new law revises the definition of “substantially limits” and instructs the Equal Employment Opportunity Commission (EEOC) to promulgate new regulations implementing the definitions of “substantially limits,” “major life activities,” and certain other terms with an eye toward allowing broader coverage under the ADA.

Whether or not one agrees that the amendment creates good social policy, the wise employer will examine this legislation closely with its counsel in order to get a better handle on just how far the legislation goes in expanding coverage under the ADA.  Similarly, employers also should be interested in seeing what language the EEOC chooses to use in promulgating the new regulations directed by the amendment.  Time will tell on those fronts.  However, one thing is certain.  Regardless of the ultimate language used, the changes will present new and myriad challenges for employers.