Public Employers’ ADA Obligations Expanded with 2008 Amendments

Senate Bill 3406, which was signed into law by the President on September 25, 2008, was enacted by Congress to reverse several recent decisions of the U.S. Supreme Court which narrowed the application of the ADA.  The Act took effect on January 1, 2009.

The “ADA Amendments Act of 2008” provides the following:

  1.  any single impairment of one major life activity is enough to be considered a “disability” under the ADA;
  2. if a disability is episodic or in remission, it can still qualify under the ADA while active;
  3. determining whether a condition is a disability is made without regard to whether it can be mitigated through specified measures such as medicine or physical therapy; and
  4. the ADA prohibits discrimination against qualified individuals on the basis of a disability, even where the person is simply regarded as having a disability by the employer or public entity. 

The Act is anticipated to have a significant impact on public entities and school districts in personnel matters as follows:

  1. the Act will permit a larger number of claimants to advance rights under the ADA, both to employers as present employees and applicants and also to courts and administrative agencies charged with enforcing the ADA;
  2. Employers will need to pay particular attention when evaluating whether an employee’s condition constitutes a “disability”;
  3. particular conditions which are capable of being treated or which may go into remission, such as epilepsy, diabetes, cancer and multiple sclerosis, must be dealt with carefully in light of the Congressional intent to have the ADA read and applied broadly; and
  4. Public entities would be well advised to make reasonable accommodations in circumstances where they were not previously required to do so.

The application of the Act will reach even further in impacting services owed to students as follows:

  1. Because the definition of a qualified disability has been expanded to include conditions which do not directly impact the major life activity in use at work or school, the number of students who are eligible to have Section 504 plans will increase sharply;
  2. Other students with medical conditions which are typically treatable, such as asthma, will have expanded rights under the Act even though they may have their condition under control through medication; and
  3. it is expected that school districts will be compelled to increase the resources available to evaluate students with disabilities and to accommodate their disabilities.