• The ADAAA Arrived January 1, 2009
  • March 9, 2009
  • Law Firm: Krieg DeVault LLP - Indianapolis Office
  • On September 28, 2008, President George W. Bush signed into law the Americans with Disabilities Act Amendments Act ("ADAAA").  The ADAAA became effective January 1, 2009 and will impact work forces with fifteen (15) or more employees.  Much-touted as a re-affirmation of the "original" congressional intent to make U.S. work places accessible for physically and mentally disabled individuals, the ADAAA alters policies and practices currently used by many employers.  The ADAAA applies to cases arising on or after January 1, 2009.

    Under the Americans with Disabilities Act of 1993 ("ADA"), employers were required to assess whether an individual had a "disability."  A disability was (and is) a "physical or mental impairment that substantially limits a major life activity."  42 U.S.C. §12101(2)(A).  Individuals who had a "record of" impairment or were "regarded as" disabled also fell under the ADA's employment-related provisions.

    The ADAAA serves to displace several well-known court opinions interpreting the ADA and provides that the definition of disability is to be construed broadly.  For example, the ADAAA now prohibits employers from assessing an individual's disability in light of the beneficial impact of mitigating factors such as the use of medications, prosthetic devices, or assistive technology.  Also, the ADAAA broadens the analysis of which individuals are "substantially limited" in a "major life activity" because Congress found that courts were more narrowly interpreting those terms than intended.

    Some key concepts to consider when assessing whether an individual is entitled to protection under the ADAAA include:

    • Major Life Activity:  an expanded, non-exclusive list of activities including caring for oneself, performing manual tasks, seeing, hearing, breathing, learning, eating, sleeping, operation of major bodily functions, walking, standing, lifting, bending, speaking, reading, concentrating, communication, and working; and specifically noting that an "impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability" (ADAAA, S.3406 Sect. 4(a) (2008))
    • Substantially Limits: changing the use of "considerable" or "to a large degree" as defining "substantially limits" to a broader meaning of "significantly restricted" (probably by comparing the disabled individual's limitation with that of an "average" person in the general population)
    • Regarded as Disabled: an expanded interpretation clarifies that an individual may be "regarded as" having a disability whether or not the individual's impairment limits a major life activity, but also clarifies that an individual whose impairment is "minor" and lasts for six months or less cannot be "regarded as" being disabled
    • "Episodic" Disabilities: includes disabilities that occur episodically and/or are in remission if, when the condition returns, it would substantially limit a major life activity (expanding coverage from when condition was in an "active" state)
    • Reasonable Accommodation:  limits an employer's obligation to provide reasonable accommodation when an individual has a disability and excusing that obligation when individual is "regarded as" disabled by employer

    Clearly, the above concepts raise issues that will impact hiring, firing, and a host of personnel issues in between.  For assistance in analyzing your company's legal obligations under the ADAAA, it will be best to consult with an attorney.