Tuesday, March 24, 2009

Amendments to the Americans With Disabilities Act

The Americans with Disabilities Act of 1990 ("ADA") was passed with much fanfare, but the act's narrow interpretation by the courts has meant that very few employees with disabilities were protected by the statute. In order to receive protection, employees needed to show "an impairment which substantially limits a major life activity." 42 U.S.C. 12102(2). The impairment also had to be unrelated to the employee's ability to do the job. For the vast majority of employees, that meant that they were either too disabled or not disabled enough to receive protection from the act. Statistics showed that more than 80 percent of ADA cases that were filed in court were resolved in favor of the employer.

The ADA Amendments Act of 2008 ("ADA AA"), which was signed into law on October 3, 2008 and went into effect on January 1, 2009, was passed to expand the number of employees who are protected by the ADA. The ADA AA did not change the definition of what constitutes a disability, but the act did adopt a new rule of construction for the courts to follow. The act states: "the definition of disability shall be construed in favor of broad coverage of individuals" and "the question of whether an individual's impairment is a disability should not demand extensive analysis." The ADA AA also "abrogates" or reverses previous court decisions that had narrowly construed the ADA. The act also makes it easier for employees to assert claims under the "regarded as" portion of the ADA and includes employees who have disabilities that may be minimized by "mitigating measures." For example, if an employee has diabetes, but she controls the disease with medication, the courts are to consider whether the employee would have a qualifying impairment without the medication.

These changes in the law should increase the willingness of attorneys to file more ADA cases against employers. But it will take time to see how the lower courts interpret the changes in the law.

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