This report is devoted to the ADA Amendements Act, S. 3406, passed by the Senate unanimously on September 11, 2008. The bill is expected to be signed into law by President Bush on Thursday, September 25th.

ADA Amendments Act

Text of the ADA Amendments Act of 2008

Harkin Statement On House Passage Of The ADA Amendments Act

From the U.S. House of Representatives Committe on Labor and Education

Background
The Americans with Disabilities Act of 1990 was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Just as other civil rights laws prohibit entities from basing decisions on characteristics like race or sex, Congress wanted the ADA to stop employers from making decisions based on disability.

Unfortunately, four U.S. Supreme Court decisions have narrowed the definition of disability so much that people with serious conditions such as epilepsy, muscular dystrophy, cancer, diabetes, and cerebral palsy have been determined to not meet the definition of disability under the ADA. The result: In 2004, plaintiffs lost 97% of ADA employment discrimination claims that went to trial, often due to the interpretation of definition of disability.

People who are not hired or are fired because an employer mistakenly believes they cannot perform the job – or because the employer does not want “people like that” in the workplace – have been denied protection from employment discrimination due to these court decisions. This was not the intent of the ADA.

In brief, the ADA Amendment Act:

Overturns the erroneous Supreme Court decisions that have eroded the protections for people with disabilities under the ADA, restoring original Congressional intent.

Rejects strict interpretation of the definition of disability, and makes it absolutely clear that the ADA is intended to provide broad coverage to protect anyone who faces discrimination on the basis of disability.

Strikes a balance between employer and employee interests.

Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability.

Covers people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability.

Provides that reasonable accommodations are only required for individuals who can demonstrate they have an impairment that substantially limits a major life activity, or a record of such impairment.

Accommodations need not be provided to an individual who is only “regarded as” having an impairment.
Is supported by a broad coalition of civil rights groups, disability advocates, and employer trade organizations.

From the Bazelon Center on Mental Health Law

We are particularly gratified that Congress has voted to rescue people with psychiatric disabilities from the Catch 22 in which Supreme Court rulings left them—that when medications reduce their symptoms, however temporarily, many no longer qualified for protection as ‘people with disabilities’ under the ADA,” said executive director Robert Bernstein. The amended law explicitly rejects the narrow standards used by the Court to determine who has a disability.

“Mental health advocates will again be able to use the ADA as an effective tool to secure the protections that help people with psychiatric disabilities participate fully in society,” said Jennifer Mathis, the Bazelon Center’s deputy legal director. “People with disabilities experience real discrimination and deserve real protections,” she added. “Now those who have been denied protection will finally be able to claim them.”

Mathis was among several members of a unique team of disability advocates that engaged in intensive negotiations with representatives from the business community over the past year to reach a compromise that became the basis for a legislative fix. The negotiators also worked with a unique coalition of disability, civil rights and business representatives collaborating with a bipartisan group of congressional members and staff to finalize and secure passage of the legislation. The groups' leaders received kudos from House sponsors of the bill (see their statements, linked in the sidebar).

The law as amended will provide important new coverage for individuals with disabilities. The amended ADA:

specifically overturns Supreme Court decisions that have caused many people with disabilities whom Congress intended the ADA to cover to lose important protection;

makes it clear that Congress intended the ADA’s coverage to be broad, in contrast to the narrow scope afforded by the courts;

clarifies that the courts must apply a less demanding standard than they have been using to determine who has a disability;

ensures that medication and other measures taken to overcome the effects of a person’s condition cannot be used to conclude that the person does not have a disability

makes it easier for people with episodic impairments to be protected by the ADA;

provides that in determining whether someone is “substantially limited in a major life activity” and thus disabled, major life activities include major bodily functions, such as brain and neurological functions;

affords broad coverage for individuals “regarded as” having a disability under the ADA. A person will now be covered under this part of the ADA if he or she is treated adversely based on an actual or perceived impairment, whether or not it limits or is perceived to limit a major life activity.

American Association of People with Disabilities Press Releases

Unusual Bedfellows Urge President Bush to Sign the ADA Amendement Act into Law.

Civil Rights, Disability, and Business Communities Applaud Senate Passage of the Americans With Disabilities Amendments Act

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The DBTAC-Great Plains ADA Center is authorized by the National Institute on Disability & Rehabilitation Research (NIDRR) to provide technical assistance, training and materials dissemination related to the Americans with Disabilities Act to the Great Plains Region.

The DBTAC -Great Plains ADA Center is part of Disability Studies in the University of Missouri-School of Health Professions

Ask the Expert

The examples used in the TA Corner are based on actual technical assistance questions received by the office. If you have ADA related questions, call 1-800-949-4232 or visit www.adaproject.org for assistance and materials.

May an employer discipline an employee who violates a workplace policy that prohibits the use of alcohol or the illegal use of drugs in the workplace?

Yes. The ADA specifically permits employers to prohibit the use of alcohol or the illegal use of drugs in the workplace. Consequently, an employee who violates such policies, even if the conduct stems from alcoholism or drug addiction, may face the same discipline as any other employee. The ADA also permits employers to require that employees not be under the influence of alcohol or the illegal use of drugs in the workplace.

Employers may comply with other federal laws and regulations concerning the use of drugs and alcohol, including: (1) the Drug-Free Workplace Act of 1988; (2) regulations applicable to particular types of employment, such as law enforcement positions; (3) regulations of the Department of Transportation for airline employees, interstate motor carrier drivers and railroad engineers; and (4) the regulations for safety sensitive positions established by the Department of Defense and the Nuclear Regulatory Commission.

This answer came directly from a new EEOC guidance: Applying Performance and Conduct Standards to Employees with Disabilities that clarifies these types of questions.

The guide reviews relevant ADA requirements and explains how they govern performance and conduct standards as applied to employees with disabilities. Through examples based on actual cases and specific scenarios that the EEOC has learned about from employers and individuals with disabilities, this guide explains when and how performance and conduct standards should be applied and the appropriate role of reasonable accommodation. The guide explains how and when employees should request accommodations to help them meet performance requirements and comply with conduct rules, and how an employer should handle such requests.

Other topics addressed include issues related to attendance, dress codes, and drug and alcohol use, and the circumstances in which employers can ask questions about an employee’s disability when performance or conduct problems occur.

2009 National ADA Symposium

The DBTAC-Great Plains Center announces
the 2009 National ADA Symposium

June 8-10
Kansas City, MO
Crown Center Hyatt Regency

We will keep you posted on registration, speakers, session schedules, and related details through the ADA Report.