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Labor & Employment Law

: New York Public Personnel Law

Senate 3406; ADA Amendments Act of 2008 ? ?A bill to restore the intent and protections of the Americans with Disabilities Act of 1990.?

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Senate 3406; ADA Amendments Act of 2008 ? ?A bill to restore the intent and protections of the Americans with Disabilities Act of 1990.?

Passed by both the Senate and the House of Representatives; it will now go before a conference committee of senators and representatives to work out differences in the versions of the bill each chamber approved. The bill then goes to the President before becoming law.

The bill would override the Supreme Court?s rulings in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), that (1) this determination must take into account mitigating measures that may prevent any such substantial limitation, and (2) the ADA?s protection of individuals who are ?regarded as having a disability? applies only where the individual is regarded as having an impairment that substantially limits one or more major life activities. Instead, under the legislation, ?an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,? and an individual is ?regarded as having such an impairment? if he or she has been subjected to a prohibited action because of an ?actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.?

The bill also would override the Court?s unanimous ruling in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that (1) the terms ?substantially? and ?major? ?need to be interpreted strictly to create a demanding standard for qualifying as disabled,? and (2) that to be substantially limited in performing a major life activity under the ADA ?an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people?s daily lives.? Instead, under the legislation, to be substantially limited in performing a major life activity, an individual must ?have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people?s daily lives.? ?Disability? is to be broadly construed, and the question of whether an individual?s impairment is a disability ?should not demand extensive analysis? by a court.

Among the key provision of the bill are the following:

Section 4

Amends the Americans with Disabilities Act of 1990 (ADA) to redefine the term "disability," including by defining "major life activities" and "being regarded as having such an impairment."

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.

Section 5 -

Prohibits employment discrimination against a qualified individual on the basis of disability. (Current law prohibits employment discrimination against a qualified individual with a disability because of the disability.)

Prohibits the use of qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be related to the position and is consistent with business necessity.

Section 6 -

Declares that nothing in the Act: (1) alters the standards for determining eligibility for benefits under state worker's compensation laws or under state and federal disability benefit programs; (2) alters the requirement to make reasonable modifications in policies or procedures, unless such modifications would fundamentally alter the nature of the goods, services, facilities, or accommodations involved; or (3) provides the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability.

Declares that the authority of the Equal Employment Opportunity Commission (EEOC), the Attorney General, and the Secretary of Transportation to issue regulations includes the authority to issue regulations implementing the definitions of this Act.

Section 7 -

Makes conforming amendments to the Rehabilitation Act of 1973.

The full text of the bill is posted on the Internet at http://www.govtrack.us/congress/billtext.xpd?bill=s110-3406

Full post as published by New York Public Personnel Law on September 22, 2008 (boomark / email).