Guest Post courtesy of AGOSNET:

Sweeping changes to the Americans with Disabilities Act (ADA)—which protects individuals with disabilities from, among other things, discrimination in employment—are almost certain to be coming soon. On June 24, 2008, the United States House of Representatives passed H.R. 3195, the ADA Amendments Act (ADAAA) by an overwhelming vote of 402–17. A very similar version was introduced in the Senate on August 1, 2008 (S. 3406) with 56 Senators as original co–sponsors, and over the past couple of weeks, approximately 70 Senators have signed on in support of the bill. What this means is that it appears almost certain that, when the Senate reconvenes in September, it is highly likely that the ADAAA will be passed, most likely with enough support to override a veto if the President does not ultimately support the amendments.

The ADAAA, if passed by the Senate, would likely drastically change the ADA as we currently understand it by broadening the ADA’s protections to a wider range of individuals. Supporters of the ADAAA contend that the act will restore original congressional intent of providing broad coverage to persons with disabilities. Beginning in 1999, the United States Supreme Court has issued several decisions that those who support the ADAAA believe too narrowly construed the ADA and weakened the ADA’s effect and original intent of providing broad protection to persons with physical and mental impairments that substantially limit a major life activity. Specifically, the United States Supreme Court has held that workers with disabilities who are able to effectively mitigate their impairments (for example, by the use of medications, corrective vision or hearing devices, prosthetics, and other assistive technology) are essentially not disabled—or at least not disabled enough to qualify for the ADA’s protections. These decisions and lower court decisions following them have held that certain serious conditions that one might think are disabilities—such as epilepsy, muscular dystrophy, cancer, diabetes, and cerebral palsy—are, in fact, not always disabilities. Because of the narrow interpretation of the ADA adopted by the United States Supreme Court, many plaintiffs are found not to actually be disabled. By one account, in 2007, only 3 percent of ADA plaintiffs were ultimately successfully, largely because so many of them are found not to be disabled.

The ADAAA would broaden the ADA’s reach by essentially reversing the United States Supreme Court rulings that narrowly interpret the meaning of the key phrase “substantially limits a major life activity.” The ADAAA would define disability as any actual, past, or perceived physical or mental impairment that substantially limits a major life activity, and would define substantially limits a major life activity as “materially restricts a major life activity.” The ADAAA would also, for the first time, provide a list of per se major life activities. The list includes, but is not limited to, caring for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, and the performance of any major bodily function. The ADAAA would also prohibit the consideration of measures that reduce the impact of an impairment on an individual. In other words, a hearing impaired person who can hear just fine with hearing aids who might not be covered under the ADA currently might well be covered if the ADAAA is passed into law. The ADAAA would, however, would make clear that employers are not required to provide reasonable accommodations to persons who are “regarded as” being disabled but who do not actually have a disability.

The bottom line is that all employers should be aware that sweeping changes to the ADA are likely coming soon. These changes will result in more individuals being covered by the ADA and its protections. Employers should pay close attention to the status of S. 3406 and attempt to be aware of when these changes will go into effect and affect their organization’s practices. If the ADAAA is passed, employers are likely going to face more instances in which they need to provide accommodations to employees who might not have been considered disabled in the past, but who are considered disabled under the new law. Employers should study the new law once the final version is passed and make the appropriate changes to their workplace policies and procedures.

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