Attention: people disabled by mold and chemical exposures: Effective Jan. 1, 2009, The Americans with Disabilities Act (ADA) has been expanded to strengthen the protection for people with disabilities. This may heavily impact schools with sick and disabled children in them and workplaces with sick and disabled employees, as well as what rights they have if they become totally disabled. (SMH). "The law overturns several Supreme Court decisions and makes clear Congress's intent that the term "disability" should be interpreted more broadly by employers and courts." (Lisa Guerin, J.D)
Parents, if your child has any medical condition (old or new), you may now investigate requesting an accommodation based on your physician's evaluation - based on this new amendment to the ADA - ie. an immediate change to a non-water-damaged classroom or building in your school, school district, or a neighboring school district. Teachers and school staff who may now be considered as having disabilities under this new amendment, if you want an accommodation based on a medical reaction to a water-damaged room, read this law, below. See our Resources-Medical section for physicians familiar with mold-related illnesses, if you don't have one in your immediate area (SMH).
by Lisa Guerin, J.D.
Changes to the Americans with Disabilities Act (ADA) will protect more workers from discrimination.
On September 25, 2008, President Bush signed the ADA Amendments Act. This new law strengthens protections provided in the Americans with Disabilities Act (ADA) for people with disabilities. The law overturns several Supreme Court decisions and makes clear Congress's intent that the term "disability" should be interpreted more broadly by employers and courts.
The likely result of the new law, set to go into effect on January 1, 2009, is that more employees will be found to have disabilities and, therefore, be entitled to reasonable accommodations for their disabilities, ;and protection from discrimination by their employers.
(To learn more about the ADA, read Nolo's articles Reasonable Accomodations for People With Disabilities: The ADA and Disability Discrimination in the Workplace: An Overview of the ADA.)
Here are some key provisions of the new law:
"Major Life Activities" Expanded
The ADA defines a disability as an impairment that substantially limits a major life activity. The new law says that major bodily functions, such as cell growth and the proper functioning of the immune, brain, and respiratory systems, also count as major life activities.
This focus on the body's internal functions will cover serious conditions which have not yet appeared as outward symptoms. For example, many types of cancer wreak havoc on the body in early stages without substantially limiting the patient's ability to breathe, walk, or work. Impairments like these will now be covered without question; in the past, some courts had found that they were not disabilities.
Impairments Don't Have to Be Active
The new law makes clear that episodic impairments (such as asthma) and diseases in remission (as might be true of cancer) are disabilities if they substantially limit a major life activity when they are active. Many serious, even life-threatening diseases wax and wane in intensity or go into periods of remission. This provision ensures that employees with these types of ailments are protected by the ADA.
Impairments Must Last For More Than Six Months
The ADA has always provided that temporary impairments, such as a broken arm, are not disabilities. The new law puts a time limit on this definition: An impairment that lasts for six months or less is defined as "transitory," and does not qualify as a disability under the law.
Corrective Measures Cannot be Considered
Previously, the Supreme Court and many lower courts ruled that corrective measures (such as drug treatments or assistive devices) could be considered when determining if an employee's condition limited his or her life activities. As a result, employees who controlled their diseases with medication and other treatments were found not to have a disability.
The new law clarifies that, except for ordinary prescription glasses and contact lenses, the corrective measures an employee uses may not be considered in determining whether the employee has a disability.
Clarification of Protections For Those "Regarded As" Having a Disability
The ADA protects not only those who have a disability, but also those who have a history of disability and those whose employers perceive them as having a disability. This last category was intended to protect employees from discrimination based on stereotypes or negative assumptions about their disability (for example, that everyone with a mental illness is dangerous, or that someone with a limp won't be able to do a job that requires walking).
In the past, courts have applied different standards to employees seeking to prove these claims. The new law clarifies that an employee needs to show only that the employer regarded him or her as having a physical or mental impairment, not that the employer further believed that impairment substantially limited a major life activity. The law also clarifies that an employee who is making only a "regarded as" claim is not entitled to a reasonable accommodation.
What Does This All Mean?
It remains to be seen exactly how these changes will play out in workplaces and courts, but one thing's clear: More employees will enjoy the protections of the ADA once the new law goes into effect.
To learn more about the federal laws that apply to the workplace, get The Essential Guide to Federal Employment Laws, by Lisa Guerin, J.D. & Attorney Amy DelPo (Nolo). For information on laws that protect employees from discrimination in the workplace, get Your Rights in the Workplace, by Barbara Kate Repa, J.D. (Nolo).
Text of the
ADA Amendments Act of 2008
Amendments to the Americans with Disabilities Act (ADA) signed into law on September 25, 2008, clarify and reiterate who is covered by the law’s civil rights protections. The “ADA Amendments Act of 2008” revises the definition of “disability” to more broadly encompass impairments that substantially limit a major life activity. The amended language also states that mitigating measures, including assistive devices, auxiliary aids, accommodations, medical therapies and supplies (other then eyeglasses and contact lenses) have no bearing in determining whether a disability qualifies under the law. Changes also clarify coverage of impairments that are episodic or in remission that substantially limit a major life activity when active, such as epilepsy or post traumatic stress disorder. The amendments took effect January 1, 2009.
The text of the amendments is provided below. A complete copy of the ADA, as amended, is also available.
ADA Amendments Act of 2008
PUBLIC LAW 110–325
SEPTEMBER 25, 2008
To restore the intent and protections of the Americans with Disabilities Act of 1990.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the "ADA Amendments Act of 2008".
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" and provide broad coverage;
(2) in enacting the ADA, Congress recognized that physical and mental disabilities in no way diminish a person's right to fully participate in all aspects of society, but that people with physical or mental disabilities are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers;
(3) while Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled;
(4) the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect;
(5) the holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) further narrowed the broad scope of protection intended to be afforded by the ADA;
(6) as a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities;
(7) in particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term "substantially limits" to require a greater degree of limitation than was intended by Congress; and
(8) Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the term "substantially limits" as "significantly restricted" are inconsistent with congressional intent, by expressing too high a standard.
(b) Purposes.--The purposes of this Act are--
(1) to carry out the ADA's objectives of providing "a clear and comprehensive national mandate for the elimination of discrimination" and "clear, strong, consistent, enforceable standards addressing discrimination" by reinstating a broad scope of protection to be available under the ADA;
(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;
(3) to reject the Supreme Court's reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;
(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms "substantially" and "major" in the definition of disability under the ADA "need to be interpreted strictly to create a demanding standard for qualifying as disabled," and that to be substantially limited in performing a major life activity under the ADA "an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives";
(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for "substantially limits", and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis; and
(6) to express Congress' expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term "substantially limits" as "significantly restricted" to be consistent with this Act, including the amendments made by this Act.
SEC. 3. CODIFIED FINDINGS.
Section 2(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101) is amended--
(1) by amending paragraph (1) to read as follows:
"(1) physical or mental disabilities in no way diminish a person's right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;";
(2) by striking paragraph (7); and
(3) by redesignating paragraphs (8) and (9) as paragraphs (7) and (8), respectively.
SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUCTION.
(a) Definition of Disability.--Section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102) is amended to read as follows:
"SEC. 3. DEFINITION OF DISABILITY. "As used in this Act:
"(1) Disability.--The term `disability' means, with respect to an individual--
"(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
"(B) a record of such an impairment; or
"(C) being regarded as having such an impairment (as described in paragraph (3)).
"(2) Major life activities.--
"(A) In general.--For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
"(B) Major bodily functions.--For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
"(3) Regarded as having such an impairment.--For purposes of paragraph (1)(C):
"(A) An individual meets the requirement of `being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
"(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.
"(4) Rules of construction regarding the definition of disability.--The definition of `disability' in paragraph (1) shall be construed in accordance with the following:
"(A) The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.
"(B) The term `substantially limits' shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.
"(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.
"(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
"(E)(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as--
"(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;
"(II) use of assistive technology;
"(III) reasonable accommodations or auxiliary aids or services; or
"(IV) learned behavioral or adaptive neurological modifications.
"(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.
"(iii) As used in this subparagraph--
"(I) the term `ordinary eyeglasses or contact lenses' means lenses that are intended to fully correct visual acuity or eliminate refractive error; and
"(II) the term `low-vision devices' means devices that magnify, enhance, or otherwise augment a visual image.".
(b) Conforming Amendment.--The Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) is further amended by adding after section 3 the following:
"SEC. 4. ADDITIONAL DEFINITIONS. "As used in this Act:
"(1) Auxiliary aids and services.--The term `auxiliary aids and services' includes--
"(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
"(B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;
"(C) acquisition or modification of equipment or devices; and
"(D) other similar services and actions.
"(2) State.--The term `State' means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands of the United States, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.".
(c) Amendment to the Table of Contents.--The table of contents contained in section 1(b) of the Americans with Disabilities Act of 1990 is amended by striking the item relating to section 3 and inserting the following items:
"Sec. 3. Definition of disability.
"Sec. 4. Additional definitions.".
SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.
(a) On the Basis of Disability.--Section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112) is amended--
(1) in subsection (a), by striking "with a disability because of the disability of such individual" and inserting "on the basis of disability"; and
(2) in subsection (b) in the matter preceding paragraph (1), by striking "discriminate" and inserting "discriminate against a qualified individual on the basis of disability".
(b) Qualification Standards and Tests Related to Uncorrected Vision.--Section 103 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12113) is amended by redesignating subsections (c) and (d) as subsections (d) and (e), respectively, and inserting after subsection (b) the following new subsection:
"(c) Qualification Standards and Tests Related to Uncorrected Vision.--Notwithstanding section 3(4)(E)(ii), a covered entity shall not use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.".
(c) Conforming Amendments.--
(1) Section 101(8) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111(8)) is amended--
(A) in the paragraph heading, by striking "with a disability"; and
(B) by striking "with a disability" after "individual" both places it appears.
(2) Section 104(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12114(a)) is amended by striking "the term `qualified individual with a disability' shall" and inserting "a qualified individual with a disability shall".
SEC. 6. RULES OF CONSTRUCTION.
(a) Title V of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 et seq.) is amended--
(1) by adding at the end of section 501 the following:
"(e) Benefits Under State Worker's Compensation Laws.--Nothing in this Act alters the standards for determining eligibility for benefits under State worker's compensation laws or under State and Federal disability benefit programs.
"(f) Fundamental Alteration.--Nothing in this Act alters the provision of section 302(b)(2)(A)(ii), specifying that reasonable modifications in policies, practices, or procedures shall be required, unless an entity can demonstrate that making such modifications in policies, practices, or procedures, including academic requirements in postsecondary education, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved.
"(g) Claims of No Disability.--Nothing in this Act shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability.
"(h) Reasonable Accommodations and Modifications.--A covered entity under title I, a public entity under title II, and any person who owns, leases (or leases to), or operates a place of public accommodation under title III, need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets the definition of disability in section 3(1) solely under subparagraph (C) of such section.";
(2) by redesignating section 506 through 514 as sections 507 through 515, respectively, and adding after section 505 the following:
"SEC. 506. RULE OF CONSTRUCTION REGARDING REGULATORY AUTHORITY. "The authority to issue regulations granted to the Equal Employment Opportunity Commission, the Attorney General, and the Secretary of Transportation under this Act includes the authority to issue regulations implementing the definitions of disability in section 3 (including rules of construction) and the definitions in section 4, consistent with the ADA Amendments Act of 2008."; and
(3) in section 511 (as redesignated by paragraph (2)) (42 U.S.C. 12211), in subsection (c), by striking "511(b)(3)" and inserting "512(b)(3)".
(b) The table of contents contained in section 1(b) of the Americans with Disabilities Act of 1990 is amended by redesignating the items relating to sections 506 through 514 as the items relating to sections 507 through 515, respectively, and by inserting after the item relating to section 505 the following new item:
"Sec. 506. Rule of construction regarding regulatory authority.".
SEC. 7. CONFORMING AMENDMENTS.
Section 7 of the Rehabilitation Act of 1973 (29 U.S.C. 705) is amended--
(1) in paragraph (9)(B), by striking "a physical" and all that follows through "major life activities", and inserting "the meaning given it in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)"; and
(2) in paragraph (20)(B), by striking "any person who" and all that follows through the period at the end, and inserting "any person who has a disability as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102).". SEC. 8. EFFECTIVE DATE. This Act and the amendments made by this Act shall become effective on January 1, 2009.
Approved September 25, 2008