October 2008 - Congress Expands The Americans With Disabilities Act: Implications For Employees And Students

DUFF, WHITE & TURNER, L.L.C.

Attorneys and Counselors at Law

SCHOOL LAW
  October 2008

CONGRESS EXPANDS THE AMERICANS WITH DISABILITIES ACT: IMPLICATIONS FOR EMPLOYEES AND STUDENTS

On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (ADAAA), which amends the Americans with Disabilities Act (ADA). The ADA prohibits employment discrimination on the basis of a disability and requires employers to make reasonable accommodations for otherwise qualified, yet disabled, employees. The ADAAA takes effect January 1, 2009, and was enacted by Congress in response to several United States Supreme Court decisions that significantly limited the scope of the ADA's protections for individuals with, or regarded as having, disabilities. In passing the ADAAA, Congress rejected those limitations by clarifying and restoring the broad protections Congress envisioned for individuals with disabilities. As highlighted below, the ADAAA significantly expands the scope of persons entitled to the protections of the ADA.

The ADA states that to be considered disabled, individuals must have, or be regarded as having, a physical or mental impairment that substantially limits one or more major life activities. The phrase "major life activities" was not defined in the ADA. The Supreme Court, however, had interpreted the phrase to mean that individuals are not considered disabled unless their condition substantially impairs an activity of primary importance in their lives. The ADAAA now requires that individuals prove only that they have a physical or mental impairment that substantially limits any major life activity. With regard to what is considered to be a major life activity, federal ADA regulations listed certain activities as examples of major life activities; the list did not include any major bodily functions. The ADAAA sets forth a non-exhaustive list of major life activities which includes major bodily functions, such as those related to the neurological, cellular, and immune systems.

In further efforts to clarify when an individual is considered to be disabled for purposes of the ADA, the Supreme Court had concluded that individuals with periodic impairments are not considered disabled, because such impairments are not considered substantially limiting. The ADAAA clarifies that individuals with periodic impairments, such as epileptic disorders, may be subject to the protections of the ADA. However, the ADAAA clarifies that a temporary impairment, one lasting less than six months, is not considered a disability for purposes of the ADA. Supreme Court decisions also had distinguished individuals who are considered "disabled" from those who function well as a result of their use of mitigating measures, such as medications, techniques, and devices. The ADAAA now extends the protections of the ADA to individuals previously denied protections because of a mitigating measure.

The ADAAA also clarifies what protections are afforded to those persons "regarded as" having a disability. First, the ADAAA defines an individual who is "regarded as" having a disability as any individual who is perceived as having a physical or mental impairment. The ADAAA then confirms that an individual who suffers an adverse employment action based on having been "regarded as" disabled is protected by the ADA, even if the negative treatment is based on a misperception that the person is disabled. However, the ADAAA goes on to clarify that no duty exists for employers to make accommodations for an individual who is "regarded as" having a disability.

Although the ADAAA broadens the employee protections of the ADA, it also has implications for students. Section 504 of the Rehabilitation Act (Section 504) was enacted to require schools that receive federal funding to provide a free appropriate public education to qualifying disabled students whose disabilities are not so severe as to create IDEA eligibility. The ADA and Section 504 define the term "disability" in a similar manner, and the courts have interpreted Section 504 and the ADA in many identical ways. Therefore, the changes made to the ADA through the ADAAA will likely be interpreted to relate to Section 504 claims involving students. Thus, as with employees, students may now seek Section 504 accommodations related to the broadened list of "major life activities," such as eating, reading, thinking and concentrating, as well as health problems such as those related to bladder, bowel or respiratory functions.

Congress' restoration and expansion of broad protections for disabled persons through the ADAAA will likely increase the number of employee and student requests for accommodations under the ADA and Section 504. When evaluating requests for reasonable accommodations, or when making employment or instructional decisions, school districts must be mindful of the provisions of the ADAAA. Prior to January 1, 2009, districts also should review and update all policies or procedures regarding employees and students with disabilities, and should provide appropriate training to all district employees responsible for implementing those policies, specifically including Section 504 compliance officers. School districts also should update their parental notice of rights under Section 504, which is required by federal regulation.

Should you have any questions about your policies or practices related to employees and students and the amendments to the ADA, please feel free to contact this firm.