Law Would Have Key Implications for Employers
The House of Representatives on June 25 passed the ADA Restoration Act of 2008 (H.R. 3195) by an overwhelming vote of 402-17. It is now quite possible that the Senate may consider and pass this bill before Congress adjourns. The 2008 bill has some key differences from the original bill introduced in 2007. It reflects compromises between business groups and disability advocates on the effort to broaden the ADA's coverage and removes or softens various of the more over-reaching elements of the original bill, including for example, putting the burden of proof on employers in disability cases -- unlike all other discrimination statutes.
Key Amendments to the ADA in H.R. 3195 would:
- Override the Supreme Court decision in Sutton v. United Airlines. The bill reverses Sutton so that the determination of whether an impairment substantially limits a major life activity will be made without regard to the ameliorative effects of mitigating measures like medications, assistive technology, auxiliary devices, learned behavior or adaptive neurological modifications except for vision corrections or improvements from "ordinary eyeglasses or contact lenses."
- Override the Supreme Court decision in Toyota Motor Mfg. v. Williams. The bill reverses Toyota's holding that the ADA be interpreted "strictly to create a demanding standard for qualifying as disabled." The bill tempers the requirement that a disability "substantially limits" one or more major life activities to mean an impairment "materially restricts" a major life activity.
- Provide that to "achieve [the Restoration Act's] remedial purposes" and override various decisions such as Toyota, the definition of disability "shall be construed broadly" by the courts.
- Rewrite the definition of a disability to state that an impairment that is episodic or in remission is still a covered disability if it would substantially limit a major life activity when active.
- Redefine major life activities to include "major bodily functions" including "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions" as well as thinking and concentration.
- Circumscribe slightly the "regarded as" prong of the definition of disability. While an individual regarded as having a disability is generally protected, the "regarded as" prong will not apply to a minor condition or one that is a "transitory" condition which is defined as a condition lasting or expected to last six months or less.
- Become effective January 1, 2009, if passed by the Senate and signed by the President.
What the Bill Means to Employers
If passed, the Act would shift the analysis of many situations from defining disability to addressing possible accommodation needs. For example, unlike under current ADA precedents, employers will need to consider individuals with conditions controlled by medication or other mitigating measures as having ADA disabilities. This will require employers to consider accommodation requests from such individuals and to engage in the interactive process of discussion about a request. Passage of the Act will likely make comprehensive return-to-work programs more important for employers. Employers should begin to consider harmonizing their return to work procedures and their reasonable accommodation process as employees will be more likely to come under both. Employers may also want to consider if the expanded definition of disability and major life activities will require changes to other employer policies, procedures and benefits. This could for example, necessitate additional accommodations in recruitment and training processes. More questions are sure to arise if the Act is passed.
If you have any questions about the ADA Restoration Act of 2008, disability or Family and Medical Leave Act situations or other employment or labor issues, please contact Frank C. Morris, Jr. at (202) 861-1880, fmorris@ebglaw.com, at the Firm's Washington, DC office.
