Legislative Update on ADA

By: Anne E. Zerbe, Esquire
Chair Employment and Labor Law Department/Co-Chair Litigation Department

The ADA Restoration Act created a concern among employers this year, as it proposed significant amendments to the Americans with Disabilities Act that would have defined a disability as any impairment, that prevented employers from considering any mitigating measures in determining if an individual was disabled and would have shifted the burden of proving that an individual was able to perform the essential functions of the job to the employer.

Recently, the ADA Restoration Act has been replaced by the ADA Amendments Act of 2008. The ADA Amendments Act of 2008 is a compromise that recognizes the need to remove barriers in employment for disabled individuals and to retain the intent and goals of the ADA. The House passed the ADA Amendments Act in late June, and it should be up for consideration by the Senate later this summer.

This is a compromise that will amend the ADA in the following manner:

The ADA Amendments Act retains the qualification that a disability "substantially limits" a major life activity, and defines the term. Unlike the ADA Restoration Act, this bill keeps the current requirement that an impairment must substantially limit a major life activity in order to be considered a disability. However, the term "substantially limits" will be redefined as "materially restricts."

Unfortunately, the ADA Amendments Act prevents an employer from considering mitigating measures. The bill prohibits consideration of mitigating measures in determining whether an individual has a disability - with the exception of ordinary eyeglasses and contact lenses. This is not helpful to employers addressing employees with high blood pressure, diabetes and other impairments which can be controlled by medication, etc.

The Act expands the definition of "regarded as." The Act defines an individual as being "regarded as" having a disability if the employee establishes that he/she has been discriminated against because of an actual or perceived physical or mental impairment. However, an individual is not "regarded as" having a disability if the impairment is transient and minor, and if the impairment is expected to last less than six months. In a helpful development for Employers, the proposed legislation makes it clear that employers are not required to provide a reasonable accommodation to individuals that are "regarded as" disabled.

The Act retains the burden of proof for proving that the individual is qualified. The bill retains the current requirement that the employee has to prove that he or she is qualified and able to perform the essential functions of the job.