Nearly eight months ago, I asked the question: Will the Americans with Disabilities Act Be Amended?
At that point, I indicated that an ADA Restoration Act Bill of 2007 was not yet a "hot topic" but as election season heated up, we could see some action on some proposed amendments. There have been some followup posts both in January and again earlier this month.
Now, the answer my prior question, I think the answer is likely "yes".
Within the last few weeks, a compromise bill (now titled the ADA Amendments Act of 2008) has been fashioned and on Wednesday, it passed the U.S. House of Representatives overwhelmingly (402-17). All Connecticut representatives voted in favor of it. The bill (H.R. 3195), can be downloaded here,
The Workplace Horizons blog and the Ohio Employer’s Law Blog have some initial feedback and reaction to the bill, as well as Disability Law 2.0. The New York Times had this mainstream report. For additional blogs from advocacy groups, see the American Association of People with Disabilities blog and the NAM (National Association of Manufacturers) blog.
So, what would the ADA Amendment Acts do?
On its face, it strives to overturn various U.S. Supreme Court cases that the bill’s sponsors believe narrowed the ADA too much. Thus, the bill broadens definitions of various terms. For example, it defines the phrase "substantially limits" to mean "materially restricts". It also features some aspects seen as "for employers" such as limiting "regarded as" claims as impairs that last or are expected to last for more than six months.
The biggest changes, however, come to the definition of "disability" itself. In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of "disability." These amendments expressly reverse that ruling:
- An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
- The determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures, such as medications, equipment, assistive technology, auxiliary devices, learned behavioral, or adaptive neurological modifications.
- Eyeglasses or contact lenses, however, can still be considered in determining whether an impairment substantially limits a major life activity.
There is no date yet for a vote in the Senate. As the term continues and it becomes more likely that the bill is going to pass, I’ll provide an update with additional details about the proposed provisions.
For now, employers should stay tuned for future legislative developments and take an opportunity now to understand the scope of the ADA. If it is passed, the bill may make it more difficult for employers to get "summary judgment" in ADA cases and is sure to raise a whole new set of issues related to the definition of "disability". For employers in Connecticut, ADA amendments could be particularly tricky because of the risk that courts in Connecticut (which tend to follow the ADA lead) will use the amendments to interpret our state disability discrimination law, which has developed somewhat differently.