Build On This!

The Senate is expected to pass a similar bill. Senator Tom Harkin, the Iowa Democrat leading the effort, predicted that the Senate would act “in the near future.”

The chief sponsor of the House bill, House Democratic leader, Representative Steny H. Hoyer of Maryland, said the situation had to be addressed. Because of the manner in which courts were interpreting the ADA, an “individual may be considered too disabled by an employer to get a job, but not disabled enough by the courts to be protected by the ADA from discrimination,” Mr. Hoyer said. “The ability of literally millions of disabled Americans to pursue active, productive lives and have meaningful employment will improve if this measure becomes law.”

The chief Republican sponsor, Representative F. James Sensenbrenner, Jr. of Wisconsin, said the Supreme Court had “chipped away at the protections” of the 1990 ADA law, leaving millions of Americans with no recourse or remedy for discrimination.

According to the President’s Office of Management and Budget, “The Administration strongly supports the overall intent of H.R. 3195, as well as a number of the specific changes it would make.”

The ADA Amendments Act of 2008 contains broad-sweeping amendments to the Americans With Disabilities Act (ADA) and is expected to significantly effect employers and employees throughout the country. Increased litigation over the meaning and intent of the new law is likely. Also, the amendments are designed to broaden the application of the ADA, as compared to the narrow application given by the courts since 1990. In other words, more employees will be covered and more employees will need to be accommodated in order to avoid running afoul of the ADA. In addition, it is likely that once the law is passed, employees who do sue, will be much more successful in getting their claims before a jury—as opposed to having their claims dismissed by a judge.

While the bill in its current form represents significant revisions to the ADA and specifically rejects many of the Supreme Court decisions passed in the past 10 years, it is a somewhat watered-down version of the initial bill known as the ADA Restoration Act.

As originally introduced, the ADA Restoration Act would have been a radical expansion of the ADA - one with significant unintended consequences and expansive new mandates on employers and other stakeholders. Employer advocates and those representing business interests were outraged.

The current bill was reached through compromise discussions over the past few months and is reported to have significant support on both sides of the aisle, as well as among advocates for the disabled and many key agencies representing business interests.

The compromise version – the ADA Amendments Act of 2008 – will have a direct impact on the number and types of legal claims covered by the ADA in the future. The law broadens the coverage of the ADA, changes significantly the definition of “disability,” and prohibits consideration of mitigating measures such as medication, prosthetics, and assistive technology in determining whether an individual has a disability.

Under the compromise language:

• Courts are instructed to give a broad (as opposed to narrow) interpretation to the definition of disability;
• An otherwise substantially limiting impairment, which is in remission or episodic, may still be covered by the Act;
• "Substantially limits” is defined to mean “materially restricts.” However, the legislation fails to make clear what is required to find that an impairment “materially restricts” a major life activity in order to be considered a disability.
• Any person whose impairment has less than a material restriction on a major life activity, but who is nonetheless discriminated against by an employer, will have redress under the law for all acts of discrimination other than the failure to
receive a reasonable accommodation -- such as firing or a failure to hire,
promote, pay equally, etc.;
• An employee who can demonstrate that an impairment materially restricts a major bodily function may now be covered (e.g., a person with diabetes may be covered because the physical impairment materially restricts endocrine functioning); and
• In a claim that an employer “regards” an employee to be disabled, the focus is now on the employer’s treatment of a person with a disability instead of requiring proof about the “perception” of the employer.
• Courts are prohibited from considering the use of mitigating measures in determining whether an individual has a disability. The only exceptions would be ordinary eyeglasses and contact lenses.

The bottom line: If passed, the legislation, as it is currently drafted, would take effect on January 1, 2009. Once passed, the criteria and analysis used by employers and HR professionals to evaluate ADA claims and requests for accommodation must be completely revised and updated. The current “rules” will no longer apply. If you have any questions or concerns about the bill in its current form or once the law is passed, please feel free to contact me.