Late last week, the Senate finally passed the compromise version of the ADA Amendments Act, (S.3406, which is available here) which I’ve covered before. The bill needs to be reconciled with the House version, but final passage and approval by President Bush is now expected this month.
The bill, set to become effective January 1, 2009, if enacted, would define the term "disability" as "a physical or mental impairment, a record of such impairment, or being regarded as having such impairment." It would provide that employees are protected against discrimination because of a disability. It would provide, however, that while an individual regarded as having a disability is protected against discrimination, the "regarded as" provision would not apply to an individual with a condition that is minor, or that is a "transitory" condition lasting or expected to last six months or less.
Some have lamented the changes as far-reaching and I’m sure others think that they don’t go far enough.
But at the ABA Labor & Employment Conference in Denver on Friday, EEOC Associate General Counsel Peggy Mastroianni shared her thoughts on the compromise bill in the midst of a presentation on leaves of absences.
Mastroianni said that both management-side representative and plaintiff and union groups worked hard with senators to “craft something that both sides could live with."
She added, “You know that when U.S. Chamber of Commerce and the American Diabetes Association agree on a bill, it’s a good compromise."
Mastroianni predicted that one consequence of the ADA Amendments Act will be more analysis of the actual disability and condition that persons have. As she remarked, this analysis will “go to the heart” of the ADA, something that she believed had been lacking in recent years.
Lastly, Mastroianni emphasized the usefulness of the guidance released last week on addressing performance-related issues under the ADA. In an upcoming post, I’ll discuss a specific provision that some may overlooked in their initial review of the guidance.