In late September, President Bush signed the Americans with Disabilities
Act Amendments of 2008, which will become effective January 1, 2009.
As we wrote in a
prior post, although the ADA is, in theory, a wonderful law for disabled employees,
in practice, it has been very difficult for employees to prevail in
disability discrimination cases. The United States Supreme Court has issued several key decisions
under the ADA which dramatically limited the scope of the law, and the
lower courts, including the Eleventh Circuit (the federal appeals court
with jurisdiction over the federal district courts of Georgia, Florida
and Alabama) have uniformly interpreted the law in an employer-friendly fashion.
This may well change under the new law. The new law specifically expressly
criticizes the Supreme Court’s ADA decisions and also takes aim
at several EEOC regulations which have supported the anti-employee interpretation
of the ADA. Although the new legislation is quite complex, and will need
to be fleshed out by the courts before its full meaning becomes clear,
it contains a number of employee-friendly provisions. Perhaps the most
significant change is the new definition of the term “major life
activity.” Under the new law, the definition of major life activity
will be expanded to include a “major bodily function” so that
if an individual has a serious medical condition that does not directly
affect a major life activity, the individual will now be covered by the
ADA. These covered bodily functions include the functions of the “immune
system, normal cell growth, digestive, bowel, bladder, neurological, brain,
respiratory, circulatory, endocrine, and reproductive functions.”
The new law also includes a non-exhaustive list of the types of covered
major life activities: “caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating,
Additionally, the new law should make it easier for employees to establish
a “regarded as” disability claim. Under the new law, an employee
claiming a regarded as disability will only need to show that he or she
was regarded as having an impairment-not that the impairment was perceived
to be a substantially limiting one, as is the case under the current law.
The new law will also prevent courts from taking into consideration an
individual’s use of medicines and other mitigating measures in the
determination of whether or not the individual is disabled.
The new law also provides that physical or mental impairments that are
episodic in nature, or which are in remission (which are not covered under
the current law), will now be covered as long as they would limit a major
life activity when they are active.
As cases are decided under the new law, we’ll keep you posted.