Federal legislation was recently adopted which modifies the Americans with Disabilities Act (the “ADA”) to broaden the application of the Act’s provisions as they apply to employers and public entities.  Specifically, 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 ADA Amendments Act of 2008 clarifies that any single impairment of one major life activity is enough to be considered a “disability” under the ADA, and if a disability is episodic or in remission, it can still qualify under the ADA while active.  The Act also states that 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 that 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 will take effect on January 1, 2009, and a copy of the legislation is enclosed.  Note the “Purposes and Finding Section.”

The Act is anticipated to have a significant effect on public entities and school districts in particular or both in personnel matters and student educational issues.  With regard to employees, 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.  Employers will need to pay particular attention when evaluating whether an employee’s condition constitutes a “disability,” and 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.  Public entities may find themselves making 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.  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.  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.   As a result, it is expected that school districts will be required to increase the resources available to evaluate students with disabilities and to accommodate such disabilities.

Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.