ADA AMENDMENTS ACT OF 2008 (ADAAA) Apryl M. DeLange Hopkins & Huebner, P.C Grand Avenue, Suite 111 Des Moines, IA Telephone: (515) Fax: (515)

ADA Amendments Act of 2008 (ADAAA)  Effective on January 1, 2009  Broadens the definition of “disability” by:  (1) amending the list of activities that are deemed to constitute “major life activities”,  (2) redefining the meaning of the term “substantially limits”, and  (3) amending the “regarded as” prong of the disability definition.

ADA GENERALLY (42 U.S.C. § et seq.)  Applies to all employers with 15 or more employees and to all governmental entities (regardless of size)  Illegal to discriminate against a “qualified individual” on the basis of “disability” in regard to:  job application procedures,  hiring, advancement, job training or discharge of employees,  employee compensation, and  other terms, conditions, and privileges of employment.

ADA GENERALLY (42 U.S.C. § et seq.)  A “qualified individual” is an individual who, with or without “reasonable accommodation”, can perform the essential functions of the employment position  A “disability” is (A) a physical or mental impairment that “substantially limits” one or more of the “major life activities” of such an individual, (B) a record of such an impairment, or (C) being “regarded as” having such an impairment. (42 U.S.C ).

ADA GENERALLY (42 U.S.C. § et seq.)  “Reasonable accommodation” includes making facilities accessible, job restructuring, reassignment, modification of equipment, and acquisition of technology.  Employers are not required to make reasonable accommodations that would impose an “undue hardship” – that is, an accommodation requiring significant difficulty or expense.

ADAAA (Pub. L. No , 122 Stat. 3553, as codified in 42 U.S.C. § et seq.)  The ADAAA broadens the definition of disability by redefining and expanding the meanings of “major life activities,” “substantially limits,” and “regarded as.”

Major Life Activities  Pre ADAAA  ADA did not enumerate specific activities that qualified as major life activities.  EEOC regulations: classified caring for oneself, performing, manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working as major life activities.

Post ADAAA The ADAAA provides that the following non-inclusive list of activities constitute “major life activities” within the meaning of the term “disability” as defined in the ADA:

1. caring for oneself, 2.performing manual tasks, 3.seeing, 4.hearing, 5.eating, 6.sleeping, 7.walking, 8.standing, 9.lifting, 10. bending, 11. speaking, 12. breathing, 13. learning, 14. concentrating, 15. thinking, 16. communicating, and 17. working.

New classification of “major life activities” is “major bodily function” Including, but not limited to:  1.functions of the immune system,  2.normal cell growth,  3.digestive,  4.bowel,  5.bladder,  6.neurological,  7.brain,  8.respiratory,  9.circulatory,  10.endocrine, and  11.reproductive functions.

Substantially Limits  Pre ADAAA Prior to the ADAAA, courts defined “substantially limits” as “preventing” or “severely restricting” a major life activity.

Post ADAAA  Congress expressly rejected the Supreme Court’s “prevents or severely restricts” interpretation of “substantially limits.”  ADAAA simply states that the term “substantially limits” shall be interpreted consistently with the findings and purposes of the act, and shall be construed in favor of broad coverage of individuals under this act.  No specific test

Mitigating Measures – No more…  ADAAA provides that the determination of whether impairment “substantially limits” a “major life activity” shall be made without regard to corrective effects of mitigating measures.  So – you look at the person without regard to medicine they may take or medical devices they may use  Exception – eye glasses and contacts can be taken into account

Now - only impact one major life activity…  ADAAA clarifies that an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.  Changes prior precedent pertaining to work. Pre-ADAAA if the major life activity was working, there needed to be a showing that there was also another substantial limitation in some other major life activity.

“Regarded as” Pre ADAAA  An individual satisfied the “regarded as” prong of the disability definition by establishing that:  he or she had been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment and  by showing that he or she did not have such an impairment that substantially limited a major life activity.

Post ADAAA  An individual meets the “regarded as” prong of the disability definition by establishing that  he or she has been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment regardless of whether or not the impairment actually limits or is perceived to limit a major live activity

Perceived Disabilities - ADAAA  Employers do not have to provide reasonable accommodations or modifications to individuals who are “regarded as” disabled

Minor Impairments  ADAAA provides that “transitory and minor” impairments (i.e., impairments with actual or expected duration of 6 months or less) continue to be excluded from the “regarded as” coverage under the ADA

LOOKING AHEAD LOOKING AHEAD  The ADAAA does not include an exhaustive list of activities that are considered major life activities.  What constitutes a major life activity will continue to be litigated.  “Substantially limits” and “regarded as” have been broadened.  The application of this will be developed through case law.

EEOC  The ADAAA includes an express mandate to the EEOC to issue binding regulations and other interpretive guidance on the ADAAA  Regulations will be forthcoming in 2009.

New Litigation  Defense of ADA cases:  Will move away from defending on the basis that an employee is not disabled, to whether a reasonable accommodation was made and whether proximate cause exists between the adverse action and disability status