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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

December 2009, vol. 11, no. 2

Brief review of new provisions in the ADA Amendments Act of 2008 EEOC invites public comment and input on new regulations for the statute through November 23, 2009

Last fall, Congress enacted the Americans with Disabilities Amendments Act of 2008 (ADA Amendments Act of 2008 or ADAAA), which became effective on January 1, 2009. See Pub. L. No. 110-325, 122 Stat. 3554 (codified as amended at 42 U.S.C. §§ 12101- 12103, 12111-12114, 12201, 12205a-12213). In the Act’s Findings and Purposes, Congress stated its intention in enacting the ADA of 1990 that the statute “’provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities’ and provide broad coverage.” Further, the ADAAA states that “while Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled.” The statute then explicitly rejects holdings of the United States Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). Congress stated that Sutton and Toyota “narrowed the broad scope of protection intended to be afforded by the ADA.”

Further, Congress stated that the existing Equal Employment Opportunity Commission (EEOC) regulations defining “substantially limits” as “significantly restricted” “are inconsistent with congressional intent, by expressing too high a standard.” See 29 C.F.R. Part 1630. The EEOC, therefore, is working on revising the regulations. Written comments on proposed new regulations are welcome and are being accepted through November 23, 2009. Comments with attachments can be sent electronically to <http://www.regulations.gov>, or by mail to Stephen Llewellyn, Executive Officer, Executive Secretariat, Equal Employment Opportunity Commission, 131 M Street NE, Suite 4NW08R, Room 6NE03F, Washington, D.C. 20507.

The definition of a “disability” in the ADAAA remains as: (1) a physical or mental impairment that substantially limits one or more major life activities; or (2) a record of an impairment; or (3) being regarded as having such an impairment. 29 C.F.R. 1630. One change to the “substantially limits” definition is that whether an individual has a disability that substantially limits a major life activity is to be made without regard to “the ameliorative effects of mitigating measures” including medication, prosthetics, “use of assistive technology,” etc., except for “ordinary eyeglasses or contact lenses.” 29 C.F.R. 1630.2(j).

Congress also broadened, or at least clarified, the definition of “major life activities” to include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Further, a major life activity also includes “the operation of a major bodily function,” including functions of “the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” 29 C.F.R. 1630.2. Also, an impairment that is “episodic or in remission is a disability if it would substantially limit a major life activity when active.” 29 C.F.R. 1630.2(j)(4).

The ADA Amendments Act, therefore, provides for a more broad definition of disability than under the earlier statute, or, at a minimum, explicitly clarifies Congress’ intention that “disability” must be broadly applied. In fact, Congress stated that a purpose of the statute is “to carry out the ADA’s objectives of providing ‘a clear and comprehensive national mandate for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable standards addressing discrimination’ by reinstating a broad scope of protection to be available under the ADA.” Undoubtedly, the statute already has had significant effects on the employment relationship. Employers may be spending less time determining whether their employees have a disability, and focusing more on reasonable ways of accommodating the employees. Employees certainly must be more confident in seeking protection under the ADAAA. ■


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