IN THE NEWS – CONGRESS EXPANDS ADA DEFINITION OF DISABILITY

The ADA Amendments Act of 2008, a compromise bill that expands ADA coverage to employees with a variety of disabilities previously excluded by the courts, has been passed by Congress, and it is anticipated that President Bush will sign it into law shortly.

According to the summary of the legislation posed on the Library of Congress’ online public access “Thomas” page (http://thomas.loc.gov/), the amendment:

Sets forth rules of construction regarding the definition of "disability," including that: (1) such term shall be construed in favor of broad coverage of individuals under the Act; (2) an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability; (3) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and (4) the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of specified mitigating measures.

What does this mean for employers? Primarily, this means taking a closer look at how your HR policies define “disability,” taking steps to ensure compliance in your hiring, discipline, promotion and firing policies, and ensuring that the new criteria is used when viewing requests for accommodation or employee complaints under the ADA on a case-by-case basis.

As a practical matter, the amendment may bring clarity to gray areas that were previously the subject of judicial interpretation, such as whether an individual with cancer has a disability under the ADA, and whether employees who suffer from serious medical conditions that are controlled by medication – like diabetes and epilepsy – are eligible for coverage. Under the amendment, both would be entitled to protection. The amendment also lays to rest disputes over whether individuals with prosthetic devices, such as artificial limbs, are qualified individuals with a disability under the ADA. (They are.)

Whether the new amendment – which has been lauded by business groups and employee rights advocates alike – will reduce litigation over the definition of a covered disability or simply lead to new issues to be litigated remains to be seen.