ADA AMENDMENTS ADA AMENDMENTS ACT OF 2008 (ADAAA)ACT OF 2008 (ADAAA)

Apryl M. DeLangeApryl M. DeLangeHopkins & Huebner, P.C.Hopkins & Huebner, P.C.

2700 Grand Avenue, Suite 1112700 Grand Avenue, Suite 111Des Moines, IA 50312Des Moines, IA 50312

Telephone: (515) 244-0111 Telephone: (515) 244-0111 Fax: (515) 244-8935Fax: (515) 244-8935

adelange@hopkinsandhuebner.comadelange@hopkinsandhuebner.com

ADA Amendments Act of ADA Amendments Act of 2008 (ADAAA)2008 (ADAAA)

Effective on January 1, 2009Effective on January 1, 2009 Broadens the definition of “disability” by:Broadens the definition of “disability” by:

(1) amending the list of activities that are deemed (1) amending the list of activities that are deemed to constitute “to constitute “major life activitiesmajor life activities”, ”,

(2) redefining the meaning of the term (2) redefining the meaning of the term ““substantially limitssubstantially limits”, and ”, and

(3) amending the “(3) amending the “regarded asregarded as” prong of the ” prong of the disability definition. disability definition.

ADA GENERALLY ADA GENERALLY (42 (42 U.S.C. § 12101 et seq.)U.S.C. § 12101 et seq.)

Applies to all employers with 15 or more Applies to all employers with 15 or more employees and to all governmental entities employees and to all governmental entities (regardless of size) (regardless of size)

Illegal to discriminate against a “qualified Illegal to discriminate against a “qualified individual” on the basis of “disability” in regard individual” on the basis of “disability” in regard to: to: job application procedures, job application procedures, hiring, advancement, job training or discharge of hiring, advancement, job training or discharge of

employees, employees, employee compensation, and employee compensation, and other terms, conditions, and privileges of other terms, conditions, and privileges of

employment.employment.

ADA GENERALLY ADA GENERALLY (42 (42 U.S.C. § 12101 et seq.)U.S.C. § 12101 et seq.)

A “qualified individual” is an individual who, A “qualified individual” is an individual who, with or without “reasonable accommodation”, with or without “reasonable accommodation”, can perform the essential functions of the can perform the essential functions of the employment position employment position

A “disability” is (A) a physical or mental A “disability” is (A) a physical or mental impairment that “impairment that “substantially limitssubstantially limits” one or ” one or more of the “more of the “major life activitiesmajor life activities” of such an ” of such an individual, (B) a record of such an impairment, individual, (B) a record of such an impairment, or (C) being “or (C) being “regarded asregarded as” having such an ” having such an impairment. (42 U.S.C. 12102).impairment. (42 U.S.C. 12102).

ADA GENERALLY ADA GENERALLY (42 (42 U.S.C. § 12101 et seq.)U.S.C. § 12101 et seq.)

““Reasonable accommodation” includes making Reasonable accommodation” includes making facilities accessible, job restructuring, facilities accessible, job restructuring, reassignment, modification of equipment, and reassignment, modification of equipment, and acquisition of technology. acquisition of technology.

Employers are not required to make Employers are not required to make reasonable accommodations that would reasonable accommodations that would impose an “undue hardship” – that is, an impose an “undue hardship” – that is, an accommodation requiring significant difficulty accommodation requiring significant difficulty or expense.or expense.

ADAAA ADAAA (Pub. L. No. 110-325, 122 Stat. (Pub. L. No. 110-325, 122 Stat. 3553, as codified in 42 U.S.C. § 3553, as codified in 42 U.S.C. §

12101 et seq.)12101 et seq.) The ADAAA The ADAAA

broadens the broadens the definition of disability definition of disability by redefining and by redefining and expanding the expanding the meanings of “major meanings of “major life activities,” life activities,” “substantially limits,” “substantially limits,” and “regarded as.”and “regarded as.”

Major Life ActivitiesMajor Life Activities

Pre ADAAAPre ADAAA ADA did not enumerate specific activities ADA did not enumerate specific activities

that qualified as major life activities. that qualified as major life activities. EEOC regulations: classified caring for EEOC regulations: classified caring for

oneself, performing, manual tasks, oneself, performing, manual tasks, walking, seeing, hearing, speaking, walking, seeing, hearing, speaking, breathing, learning, and working as major breathing, learning, and working as major life activities. life activities.

Post ADAAAPost ADAAA

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

bodily function”bodily function”Including, but not Including, but not

limited to:limited to:

1.1. functions of the functions of the immune system, immune system,

2.2. normal cell normal cell growth, growth,

3.3. digestive, digestive, 4.4. bowel, bowel,

5.5. bladder, bladder, 6.6. neurological, neurological, 7.7. brain, brain, 8.8. respiratory, respiratory, 9.9. circulatory, circulatory, 10.10. endocrine, and endocrine, and 11.11. reproductive reproductive

functions. functions.

Substantially LimitsSubstantially Limits

Pre ADAAAPre ADAAA

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

Post ADAAAPost ADAAA

Congress expressly rejected the Supreme Congress expressly rejected the Supreme Court’s “prevents or severely restricts” Court’s “prevents or severely restricts” interpretation of “substantially limits.”interpretation of “substantially limits.”

ADAAA simply states that the term ADAAA simply states that the term “substantially limits” shall be interpreted “substantially limits” shall be interpreted consistently with the findings and purposes of consistently with the findings and purposes of the act, and shall be construed in favor of the act, and shall be construed in favor of broad coverage of individuals under this act. broad coverage of individuals under this act.

No specific testNo specific test

Mitigating Measures – Mitigating Measures – No more…No more…

ADAAA provides that the determination of ADAAA provides that the determination of whether impairment “substantially limits” a whether impairment “substantially limits” a “major life activity” shall be made “major life activity” shall be made without without regardregard to corrective effects of mitigating to corrective effects of mitigating measures. measures. So – you look at the person without regard to So – you look at the person without regard to

medicine they may take or medical devices medicine they may take or medical devices they may usethey may use

Exception – eye glasses and contacts can be Exception – eye glasses and contacts can be taken into accounttaken into account

Now - only impact one Now - only impact one major life activity…major life activity…

ADAAA clarifies that an impairment that ADAAA clarifies that an impairment that substantially limits one major life activity need substantially limits one major life activity need not limit other major life activities in order to be not limit other major life activities in order to be considered a disability. considered a disability.

Changes prior precedent pertaining to work. Changes prior precedent pertaining to work. Pre-ADAAA if the major life activity was Pre-ADAAA if the major life activity was working, there needed to be a showing that working, there needed to be a showing that there was also another substantial limitation in there was also another substantial limitation in some other major life activity.some other major life activity.

““Regarded as”Regarded as”

Pre ADAAAPre ADAAA An individual satisfied the “regarded as” An individual satisfied the “regarded as”

prong of the disability definition by prong of the disability definition by establishing that:establishing that: he or she had been subjected to an he or she had been subjected to an

action prohibited under the ADA action prohibited under the ADA because of an actual or perceived because of an actual or perceived physical or mental impairment physical or mental impairment andand

by showing that he or she did not have by showing that he or she did not have such an impairment that substantially such an impairment that substantially limited a major life activity.limited a major life activity.

Post ADAAAPost ADAAA

An individual meets the “regarded as” An individual meets the “regarded as” prong of the disability definition by prong of the disability definition by establishing that establishing that he or she has been subjected to an action he or she has been subjected to an action

prohibited under the ADA because of an prohibited under the ADA because of an actual or perceived physical or mental actual or perceived physical or mental impairment impairment regardless of whether or not the regardless of whether or not the impairment actually limits or is perceived to impairment actually limits or is perceived to limit a major live activitylimit a major live activity

Perceived Disabilities - Perceived Disabilities - ADAAAADAAA

Employers Employers do notdo not have to provide have to provide reasonable accommodations or reasonable accommodations or modifications to individuals who are modifications to individuals who are “regarded as” disabled “regarded as” disabled

Minor Impairments Minor Impairments

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

LOOKING AHEADLOOKING AHEAD

The ADAAA does not include an The ADAAA does not include an exhaustive list of activities that are exhaustive list of activities that are considered major life activities.considered major life activities.

What constitutes a major life activity will What constitutes a major life activity will continue to be litigated. continue to be litigated.

““Substantially limits” and “regarded as” Substantially limits” and “regarded as” have been broadened.have been broadened.

The application of this will be developed The application of this will be developed through case law.through case law.

EEOCEEOC

The ADAAA includes an express The ADAAA includes an express mandate to the EEOC to issue binding mandate to the EEOC to issue binding regulations and other interpretive regulations and other interpretive guidance on the ADAAAguidance on the ADAAA

Regulations will be forthcoming in 2009. Regulations will be forthcoming in 2009.

New LitigationNew Litigation

Defense of ADA cases:Defense of ADA cases: Will move away from defending on the Will move away from defending on the

basis that an employee is not basis that an employee is not disabled, to whether a reasonable disabled, to whether a reasonable accommodation was made and accommodation was made and whether proximate cause exists whether proximate cause exists between the adverse action and between the adverse action and disability status disability status