COMPLIANCE CORNER
AdA ANd SeNioR LiviNG
Legislative Updates for the Workplace
Revisions
to the
Americans with
disabilities Act
substantially
broaden
the scope
of covered
disabilities—
and, therefore,
what employers
need to
accommodate.
BY EVE I. KLEIN
The Americans with Disabilities Act (ADA) underwent substantial revisions when the ADA Amendments Act of 2008 (ADAAA)
took effect on January 1, 2009. The stated purpose
of the ADAAA was to redress court decisions that
“created an inappropriately high level of limitation
necessary to obtain coverage under the ADA.” The
clear upshot of the ADAAA was to substantially
broaden the scope of disabilities covered under
the ADA, making more individuals eligible for
the provision of employer-provided reasonable
accommodations.
On September 23, 2009, the Equal Employment
Opportunity Commission (EEOC) issued a Notice
of Proposed Rule Making (NPRM), which issued
proposed revisions to the ADA regulations and accompanying interpretive guidance to bring them
into compliance with the ADAAA. These regulations and guidelines will be finalized shortly. Senior living communities, which rely heavily on able
staff to care for residents, should be aware of the
ADAAA and NPRM developments.
defining disability
The revised legislation provides that, in general,
the definition of “disability” should be broadened to
the maximum extent permitted by the terms of the
ADA. The ADA defines disability as: ( 1) a physical
or mental impairment that substantially limits one
or more major life activities; ( 2) a record of such an
impairment; or ( 3) being regarded as having such
an impairment. The Act maintains this definition
of disability, but clarifies each prong of the definition and regards each as more expansive.
The definition of “major life activity” is expanded under the Act and NPRM. The Act rejects
Supreme Court precedent holding that major life
activities are limited to those of “central importance
to a person’s life.” As explained in the NPRM, major life activities are to be construed as basic activities, including major bodily functions, that most
people in the general population can perform with
little or no difficulty. The Act sets forth a specific
non-exhaustive list of major life activities, includ-
ing caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating,
and working. The NPRM adds three additional major life activities not included in the text of the Act:
reaching, interacting with others, and sitting.
The ADAAA also includes a non-exhaustive list
of major bodily functions, including normal cell
growth and regular functions of the immune, endocrine, digestive, neurological, circulatory, respiratory, and reproductive systems. The NPRM also adds
special sense organs and skin, genitourinary, cardiovascular, hemic, lymphatic, and musculoskeletal
functions to the list. The ADAAA makes clear that
an impairment need only substantially limit one
major life activity to be considered a disability.
interpreting Key Phrases
The Act rejects the Supreme Court’s holding in
Toyota Motor Mfg., Kentucky Inc. v. Williams, which
held that the phrase “substantially limits” should be
strictly construed, and that a disability must severely
restrict or prevent the individual from doing activi-
ties that are of central importance to most people’s
lives. The Act also rejects the regulations promul-
gated by the EEOC that define “substantially limits”
as “significantly restricted.” Specifically, the ADAAA
says the EEOC’s definition of “substantially limits” is
“inconsistent with congressional intent, by express-
ing too high a standard.”
In response to this, the NPRM removes the fac-
tors that are currently considered in determining
whether an impairment is “substantially limiting”—
specifically, the nature, severity, and duration of the
impairment and the permanent or long-term impact
of the condition. Instead, the NPRM proposes sever-
al rules of construction, including: The focus should
be on whether discrimination occurred rather than
whether the individual meets the definition of dis-
ability; the individual does not have to demonstrate
the limitation is in an activity of “central importance
to daily life”; and the term “substantially limits”
should not require extensive analysis.
