President Signs Law Expanding Disability Rights

On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008 (Act), which was passed by Congress with the specific intention of overturning a series of U.S. Supreme Court (Court) cases that narrowed the definition of who is entitled to protection under the Americans with Disabilities Act of 1990 (ADA). These changes will be effective January 1, 2009. A review of the history of the ADA will help explain the impact of these changes.

In 1990, with broad bipartisan support, President George H.W. Bush signed the original ADA into law. The ADA provided a rather complex definition of who is a disabled individual and, therefore, entitled to protection.

In September 1999 and again in 2002, the Court decided a series of cases that narrowed the application of the above definition. For example, the Court held a near-sighted person is not disabled if her vision is corrected with contacts or glasses; that a person with high blood pressure controlled by medication is not disabled; and a factory worker who was told by her physician that she should not perform any of the manual tasks associated with her job was not substantially limited in her major life activities.

In passing these new amendments, Congress specifically expressed its displeasure with the Court’s restrictions and stated its intention to overrule the strict and demanding standards. Some of the changes made by the amendments include:

• The determination of whether an impairment “substantially limits a major life activity” is to be made without reference to the effects of mitigating measures or assistive devices. This means that if a diabetic or someone with epilepsy can control the condition with medication, they still may be disabled under the Act.
• A prohibition of the use of qualification standards, employment tests, or other selection criteria based upon an individual's uncorrected vision unless the standards, tests, or other selection criteria are shown to be related to the position and are consistent with business necessity.
• A new definition of “substantially limits” to redefine the term "disability," to make it easier for an employee to meet the definition of being disabled.
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. This means that someone who has cancer, even if it is in remission, may now be disabled under the law.
• Directing federal agencies to issue regulations consistent with the congressional mandate of “clear, strong, consistent, enforceable standards addressing discrimination by reinstating a broad scope of protection to be available under the ADA.”

The changes in these definitions ensure that more people will now qualify as disabled individuals under the ADA. It can be expected that plaintiffs will file more actions before the Equal Employment Opportunity Commission (EEOC) and in courts in an attempt to test the limits of the new definitions. Businesses, including those in the health care industry, must re-evaluate their facilities and programs with regard to access to public accommodations. Until the regulations are issued, there will be additional uncertainty. This underscores the need for employers to make decisions based upon legitimate business reasons and to review with legal counsel employment decisions regarding persons with physical or mental impairments.

Legal News Alert is part of our ongoing commitment to providing up-to-the minute information about pressing concerns or industry issues affecting our senior living clients and colleagues.

If you have any questions about this alert or would like to discuss this topic further, please contact your Foley attorney or:

Mark J. Neuberger
Miami, Florida
305.482.8408
mneuberger@foley.com