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Friday, September 26, 2008

Americans with Disabilities Act Amended

President Bush signed the ADA Amendments Act (the "ADA-AA") of 2008 into law today. The new law will be effective on January 1, 2009. This law was Congress' fix in response to a recent Supreme Court case which construed the terms "disability" and "significantly limits a major life activity" in a way that have drastically limited the group of Americans that truly can benefit from the ADA.

The ADA-AA significantly changes court interpretations of the ADA as follows:
  • It explicitly removing the Supreme Court's requirement that mitigating measures (like taking medication) be considered when evaluating whether an individual has a disability within the meaning of the ADA;
  • It included language in the findings and purposes section to clarify that the courts' previous interpretations of the term "substantially limits" [in the phrase "substantially limits a major life activity"] was wrong;
  • It defines the phrase "major life activity" to include "operation of a major bodily function" such as the neurological, circulatory, and reproductive systems, though other bodily functions may also be included as well;
  • It clarified that a physical or mental limitation that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
  • It ordered the courts to interpret the ADA liberally, not restrictively;
  • It aligned the definition of "disability" under other federal laws, such as the federal Rehabilitation Act, which covers federal, state, and local government employees, to the ADA-AA. However, it did not include ERISA plans - employee benefit plans that offer disability benefits - or insurance policies in this new definition, so ERISA plan sponsors are still free to define disability however they like (so you must read an employer's disability plan or an insurance policy to see what conditions are needed to get paid disability benefits.
It will be interesting to see what impact this new law will have on the meanings of these terms in other disability contexts. It will also be interesting to see if the Long Term Disability insurance carriers and ERISA plan administrators change their attitude toward work accommodations, as many have long said that a disability that could be accommodated under the ADA meant that a person could work, despite language in disability insurance plans and policies that seem to say exactly the opposite.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved.

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