A Law By Any Other Name… The Amendments to the Americans with Disabilities Act
by Laura A. Steel, Esq.
(Spring 2009, published by the Tennessee Chamber of Commerce Institute)
Attorneys love acronyms. Not because we like having our own language, but because acronyms seem to be the quickest way to reference a law, what with names like the Fair Labor Standards Act, the Family and Medical Leave Act and the Uniformed Services Employment and Reemployment Rights Act running about.
The Americans With Disabilities Act is affectionately called the ADA. That acronym worked just fine in our practice, thank you very much. Enacted in 1990, it was predicted at that time to revolutionize the workplace and to flood private-sector employers with costly lawsuits in the process. Think a Y2K scare pre-Y2K. The purpose of the ADA was to create an environment where some of the estimated 43 million Americans who had a mental or physical disability would be able to apply for and attain jobs whose tasks could be adjusted so as to reasonably accommodate the individual’s disability.
The ADA was viewed as complicated and challenging, as demonstrated by the two-year implementation period established by Congress. And over the last 17 years, we have watched as the courts have handed down decisions intended to provide some structure to the purposefully vague law, helping us define major concepts found in the law. Most would agree that the law has evolved to be less impactful than was originally feared and intended.
Enter the Americans With Disabilities Act Amendments Act of 2008, which was signed into law by President Bush on September 25, 2008. The Amendments became effective January 1, 2009. Not only does the ADAAA provide significant changes to the ADA, but it also presents us (at least the attorneys who agonize over these small things) the struggle of what to call it. A-D-A-A-A-A? AD-Triple A? AD3A? AD-ay-ay-ay? 83A? BINGO?
If only figuring out the acronym was the most mystifying and challenging part of the ADAAA. The bit of certainty we have is that the Equal Employment Opportunity Commission will be issuing new regulations for “substantially limits” as used in the definition of “disability” (“an impairment that substantially limits one or more major life activities, a record of such impairment, or being regarded as having such an impairment”). The EEOC has not given a timeframe when its new regulations will be issued, but those regulations were not in place before the effective date of the ADAAA.
Congress, in crafting the Amendments, intended to address some of the questions that were left to the courts since the ADA’s enactment in 1990. For instance, the original form of the Act did not define “disability,” but instead attempted to illustrate what was meant by the word through using even more undefined terms such as “substantially limited” and “major life activity.” Over the years, the courts were forced to come up with definitions, culminating in an Act that was rather narrowly construed. Refusing to create a be-all-and-end-all list of major life activities, the courts held that each impairment or condition had to be viewed in the context of the specific individual’s life. Employers were required to undergo a new analysis each time an employee presented him-/herself with a request for a reasonable accommodation.
That will change under the ADAAA. Congress has created two “non-exhaustive” lists of major life activities. With activities such as learning, concentrating and thinking, undoubtedly the ADAAA net will be case widely. Couple the non-exhaustive lists (the other list discusses major bodily functions, such as reproducing, that could also render an individual “disabled” under the ADAAA) with the lack of clarity on whether any context should be used when analyzing the limitation on the activity, and you see the tip of the iceberg. If an individual is substantially limited in performing one of these major life activities, the ADAAA appears to say that the individual is de facto disabled.
Further, Congress has, in all likelihood, succeeded in its goal of expanding the coverage of the ADAAA. Aside from the wide array of individuals who may find themselves substantially limited in one of the functions on the non-exhaustive lists, Congress has now mandated that any mitigating measures used by an individual to address an impairment or condition cannot be considered when determining whether the individual has a disability. The Act does provide an exception for wearers of “ordinary” eyeglasses and contacts. Aside from those, however, no other “ameliatory” measures can be weighed, representing a Congressional overthrow of two major court decisions which have benefited employers for quite some time.
What does that mean? The ADAAA says that even when a condition is in remission or under control, the individual must be considered under circumstances where such remission or control did not exist. The ADAAA goes on to state that only eyeglasses and contacts may be considered when evaluating someone’s condition. Thus, if you have an over-the-road truck driver who is able to control her high blood pressure with medication, and that high blood pressure would keep her from driving when not under control, then you must evaluate whether the driver is disabled in light of her unmedicated state. If the unmedicated state is a disability, then a reasonable accommodation must be considered. In other words, once disabled, always disabled under the ADAAA.
The next several years will prove meaningful in applying the changes represented by the ADAAA. Even 19 years after enactment of the ADA, the question of who is disabled, what is a disability, what is a reasonable accommodation, and when is someone regarded as being disabled remained tenuous. The ADAAA presents a new set of challenges for all of us to feel through—employers, counselors, administrative agencies, and the courts.
Laura A. Steel practices labor and employment law with Hunter, Smith & Davis, LLP in its Kingsport office. Certification as a labor and employment law specialist is not currently available in Tennessee.