Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

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.

As Jon Hyman notes:

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.

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For over 15 years, the Americans with Disabilities Act has been the subject of lots of hand-wringing inside human resources departments across the country. Phrases such as "reasonable accommodation" and "undue hardship" took on new meanings.  And of course, the Act spawned lots of litigation to determine the parameters of the act.

Now, a Senate Committee is looking into making tweaks to the ADA or, depending on your views, wholesale changes through a new bill making the rounds. The bill, entitled in Orwellian doublespeak as "Americans with Disabilities Act Restoration Act of 2007", would amend the Americans with Disabilities Act of 1990 to add definitions and rules of construction permitting greater opportunities for recovery than exist under current judicial interpretations allow. The Committee heard testimony last week from several individuals.

The Workplace Horizons blog has a good summary of the exact changes and has been tracking this bill as it makes its way through Congress. 

The Bill was introduced over the summer by Senator Tom Harkin who, in his internet saavy skills, posted this video to YouTube describing the bill.

Among those who testified was Dick Thornburgh, currently counsel to the national law firm of Kirkpatrick & Lockhart Preston Gates Ellis LLP, resident in their Washington, D.C. office. He is the former Attorney General of the United States and the former governor of Pennsylvania.  He actually spoke on the subject many months ago at a visit to a university -- which posted excerpts from his speech there. 

So, where does this bill go from here? On a bus tour, naturally.  Indeed, the bus visited Connecticut several weeks ago in an event attended by leaders of both political parties. But the bill still has a ways to go.

There are many blogs and posts tracking or commenting on this bill, including the American Association of People with Disabilities and Reunify Gally. 

For employers, we often track court cases without realizing that legislation can have just as dramatic an impact.  Will this bill a "hot topic" next year? It hasn't taken off yet, but with the election cycle in full swing, it remains to be seen whether this bill will catch on.

(Note: Links have been updated per comments.)

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