ADA employment provisions semi-fixed!!! On 9/25/08 President Bush signed S. 3406, The ADA Amendment Act of 2008

The 2008 Amendments to the ADA are effective January 1, 2009. Here are some links to more info:

• Read the news report of the passage of Senate 3406. This report has a photo of President Bush signing the bill, with his father Bush1 looking on. Bush1 signed the original ADA into law in 1990.
• Read the Bill Summary of Senate Bill 3406 here.
• Download a copy of Senate 3406, The ADA Amendment Act of 2008 - pdf file.

We hope the ADA Amendments eliminate the infamous “Tightrope”:

The Tightrope kills almost all ADA employment cases. For many years, due to court decisions, few workers could qualify as “disabled”. (With some exceptions) Only those few who could walk the tightrope were disabled.

Here’s what “the tightrope” refers to: To be protected by the ADA at work, you have to be very very limited, despite your medicines, leg braces, or other helpful measures, and yet you have to still be able to do the job. The more limited you are, then the less likely it is that you can do the job (and therefore you are not covered by the law) — The more able you are, then you are probably not disabled enough to be covered by the law. So, those who are covered are those who can walk the tightrope - they are sufficiently disabled, yet they can still do the job. Few people can walk the tightrope.

Here’s a portion of the Bill Summary describing the most important employment-related changes in S. 3406 —

ADA Amendments Act of 2008 -
Section 4 -

Sets forth rules of construction regarding the definition of “disability,” including that: (1) such term shall be construed in favor of broad coverage of individuals under the Act; (2) an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability; (3) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and (4) the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of specified mitigating measures.

To conclude - Predictions for changes due to The ADA Amendments Act of 2008:

• Companies will be likely to assume that significant long term health conditions are covered by the ADA. This is a complete 100% reversal of the existing situation, where companies now predict that the condition is NOT going to be a qualified disability
• Companies will be much easier to deal with when employees request accommodation of their health conditions.
• Companies should be very careful with employees whose job issues are related to their health conditions, whether or not the employees have requested accommodation of a disability.
• The EEOC will be very aggressive for a few years in enforcing the ADA amendments.

Tim's Missouri Employment Law
is by Attorney Tim Willoughby

Tim is a St. Louis Missouri employment lawyer and a member of the National Employment Lawyers Association (NELA). Visit NELA.org and the Missouri Bar Website (see the directory of lawyers).