On September 25, 2008, President Bush signed the ADA Amendments Act (the “ADAAA”) which took effect on January 1, 2009 and substantially enlarged the number and scope of individuals who are “qualified individuals with a disability.” The Act emphasizes that the definition of disability shall be construed in favor of broad coverage to the maximum extent permitted by the Act.
The amendments significantly expand the definition of “major life activities.” While the ADA originally defined major life activities to include functions such as seeing, hearing, breathing, walking, thinking, sleeping and working, the amendments to the ADA include activities such as reading, writing, concentrating, lifting and bending. The amendments also include an individual’s ability to perform major bodily functions, including proper functioning of the digestive, nervous, respiratory, endocrine, and reproductive systems, as well as impairments affecting the brain, bladder, bowel and normal cell growth. In addition, an impairment that substantially limits one major life activity need not limit another major life activity in order to be considered a disability. Significantly, a person with an impairment that is episodic or in remission (such as cancer) is still considered a disabled individual under the ADA, provided that the impairment would substantially limit a major life activity when active. Also, under the amendments, mitigating measures are not considered in determining whether an individual has an impairment which substantially limits a major life activity. Such mitigating measures include medication, medical supplies, equipment, low vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs, hearing aids and cochlear implants or other implantable hearing devices, mobility devices or oxygen therapy equipment and supplies.
Finally, the ADA amendments to the now provide that an employer violates the ADA merely by regarding an employee as having a physical or mental impairment, regardless whether that impairment is perceived by the employer to substantially limit one or more of the employee’s major life activities as provided under the original ADA. As a result, the “regarded as” provision of the ADA is now very broad. The only impairments that will not fall within the scope of the “regarded as” prong of the ADA are those impairments that last six months or less.
With the substantial expansion of potential liability under the ADA, School Districts should take immediate action to assure that they are in compliance. The ADA amendments will result in more employees and job applicants being covered by the ADA, more types of conditions will be covered and the protections afforded under the amended ADA will expand significantly. To limit liability, Districts should immediately:
- review and revise Board policies and practices, especially as they relate to the interactive process between District Officials and an employee with a disability;
- develop procedures to assist in finding and implementing reasonable accommodations when they become necessary;
- when a request for a reasonable accommodation from an employee is received, engage in the interactive process with the employee, regardless whether medication, aides or other mitigating measures may be available to the employee; and
- as in the past and most importantly is to document – document – document.
Michael L. Brungo, a partner with MB&M recently presented to SMC Business Councils on the impact of the ADA Amendments on September 17, 2009. If you have concerns whether your District is compliant with the new ADA Amendments, Mr. Brungo is available for ADA training to either District Officials or Board Members.