Americans with Disabilites Act Likely to be Amended
July 6, 2008
by Employment & Labor Law / Employee Benefits Group
Stinson Morrison Hecker LLP
Copyright © 2008
Significant changes to the Americans with Disabilities Act (ADA) – that would provide a broader scope of protection, modify the definition of disabilities and impairments, and reject several U.S. Supreme Court decisions interpreting disability discrimination – will likely take effect on January 1, 2009 as a result of bipartisan legislation (H.R. 3195) moving through Congress. Among the key changes:
Disability Construed Broadly – The bill would require that the definition of "disability" be construed broadly, and would redefine the term disability to include a physical or mental impairment that "materially restricts" one or more major life activities of an individual.
Major Life Activities – The term "major life activities" would be expanded, and would include "major bodily functions" (including but not limited to digestive, bowel, bladder, circulatory and reproductive functions).
Impairments – An impairment that is episodic or in remission would still be a disability if it would substantially limit a major life activity when active.
Mitigating Measures – The bill would reject a requirement enunciated by the U.S. Supreme Court and instead state that the determination of whether an impairment materially restricts a major life activity is to be made without regard to the ameliorative effects of mitigating measures (including medication, medical supplies, equipment, etc.).
Regarded As Having an Impairment – Under the bill, an individual would meet the requirement of "being regarded as having an impairment" if the individual can establish that he or she has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment – whether or not the impairment limits or is perceived to limit a major life activity. This would not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
Discrimination – The bill also would broaden the prohibition against discrimination by stating that employers (or other covered entities) shall not discriminate against a qualified individual "on the basis of disability" instead of "because of the disability of such individual").
House Overwhelming Passes Bill – The U.S. House of Representatives on June 25, 2008 overwhelmingly approved the bill by a vote of 402-17. The legislation moves to the Senate where it has been championed by Sen. Edward Kennedy (D-Mass.). Business and civil rights groups are supporting the bill and, despite some reservations, President Bush is expected to sign the final measure.
Bottom Line - The stated purpose of the amendments is to provide a "clear, strong, consistent, enforceable standards addressing discrimination by reinstating a broad scope of protection to be available under the ADA."
Stinson Morrison Hecker LLP is one of the country's largest law firms with more than 360 attorneys in more than 45-industry-focused areas. If you would like more information regarding this summary, please contact one of our Employment & Labor Law and Employee Benefits attorneys.
Law at Work is designed to give general information and is not intended to be a comprehensive summary or to treat exhaustively the subjects and matters covered. The information appearing herein does not constitute legal advice or opinions. Such advice and opinions are provided only upon engagement with respect to specific factual situations. Nothing contained herein shall be considered as an admission in any matter or controversy.
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