The New ADA Amendments and What They Mean for California Employers

by: Mike Pott and Colleen Howard

Effective January 1, 2009, the Americans with Disabilities Act (ADA) will provide a broader protection for disabled employees than has previously been provided under that statute. The legislation known as the ADA Amendments Act of 2008 (ADAAA) has a number of provisions – some of which were designed to reject the holdings of two Supreme Court decisions wherein the Court had narrowed the scope of the protections afforded to disabled persons. 110 Pub. L. 325, 122 Stat. 3553 (Sept. 25, 2008).

For example, the ADAAA specifically rejects the holding of Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases which held that the whether an impairment substantially limits a major life activity is to be determined by considering the impact of mitigating measures. Under this principle, if a person can take medication to control an impairment, then the impairment does not substantially limit a major life activity. Under the ADAAA, other than considering the mitigating impact of glasses and/or contact lenses on an impairment, mitigating measures are not to be considered when determining whether a person has an impairment that substantially limits a major life activity.

The ADAAA also rejects the holding of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), wherein the Supreme Court held that the definition of the ADA terms “substantially” and “major” need “to be interpreted strictly to create a demanding standard for qualifying as disabled.” The crux of this portion of the ADAAA is that the statute provides broad protection for persons with an impairment and that determining whether someone has a disability under the ADA should not require extensive analysis.

Other major amendments to the ADA of note include a larger list of what constitutes a “major life activity” than was included in the initial statute. Also, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. The ADAAA also states that an individual is “regarded as” having an impairment if the person can show that he or she was subjected to an action prohibited under the statute because of an actual or perceived physical or mental impairment regardless of whether the impairment limits or is perceived to limit a major life activity. However, the “regarded as” definition does not apply to persons who have transitory or minor impairments. A transitory impairment is one that has an actual or expected duration of six months or less. Last, an employer does not need to provide a reasonable accommodation to an individual whose sole basis for meeting the definition of disability is that the person is “regarded as” having an impairment that substantially limits a major life activity.

What do these amendments mean for California employers? Not much. The resulting amendments provide broader coverage under the ADA, bringing its scope closer to the California Fair Employment and Housing Act (FEHA). However, the FEHA still provides broader protections than does the ADA so it is likely that we will continue to see employees and their attorneys rely upon the FEHA, rather than the ADA, as the basis for their requests for accommodation and lawsuits.