Changes to the Americans with Disabilities Act Effective January 1, 2009
Date Published: 2009-06-30
Author: Christina Harris Schwinn
When the Americans With Disabilities Act of 1990 (effective 1992) passed, Congress intended the Act to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and “to provide broad coverage in order to enable disabled individuals to enjoy and participate in all aspects of society.” Congress had an expectation that the term disability would be liberally construed to effectuate the purpose of the Act. Because numerous decisions have been handed down since 1992 narrowly construing the definition of disability, Congress took action by enacting Amendments to the Americans With Disabilities Act which were signed into law on September 25, 2008 (“Amendments”). The Amendments went into effect on January 1, 2009.
The Amendments again restate the original intent of the ADA which is to “carry out the ADA’s objectives of providing a clear and comprehensive national mandate for the elimination of discrimination and clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA1. Further, it is clear from the legislative intent that a number of cases have been specifically overturned2.
Section 2A Paragraph 1 of the ADA is amended to read as follows:
Physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination.
Employers need to know that the definition of major life activity was expanded to include major bodily functions which include, but are not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. This is a significant change in the definition of what constitutes a major life activity. Prior to the effective date of the Amendments, major life activity was limited and defined to include only caring for one’s self, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.
Further, the Act was amended to provide that an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability under the Act, as amended. The Amendments provide further as follows:
Section 4(3)(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
Section 4(3)(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
Section 4(3)(E)(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. . .
The one exception to the Section 4(3)(C)(E)(II) applies to individuals who wear corrective lenses. With respect to vision impairments, the statute mandates the consideration of corrective lenses when determining whether the person’s vision impairment substantially limits a major life activity, which means if an individual can see and read with glasses or contacts, then the individual would likely not be deemed to have a covered disability under the Act, as amended.
The Equal Employment Opportunity Commission (“EEOC”) is charged with the responsibility of enacting regulations to further implement the Amendments. Note, as of the date this article was submitted for publication that the EEOC has yet to publish its proposed regulations.
Because these changes are significant, employers are encouraged to ensure that any individuals employed by them who are responsible for human resources within their organization are aware of the changes to the Act and that policies are updated to ensure compliance. The Act applies to employers employing 15 or more employees. Lee County employers employing more than 5 employees are covered by Lee County’s equal opportunity ordinance which provides, in part, that it is unlawful to discriminate in the employment of individuals based upon disability. As such, note that the Amendments will likely affect the outcome of disability discrimination claims filed with the Lee County Office of Equal Opportunity.
1 The Amendments Act 2008 Public Law 110-325 Section 2B(1).
2 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1991); Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (202).
A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice. This article has been reprinted with the permission of Lee Building Industry Association, www.bia.net. Questions regarding the content of this column or past columns may be e-mailed to Christina Harris Schwinn at christinaschwinn@paveselaw.com. To view past columns written by Ms. Schwinn please visit the firm’s website at www.paveselaw.com. Ms. Schwinn is an experienced employment lawyer and a partner with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone: (239) 336-6228; Telecopier: (239) 332-2243.