A major piece of legislation is not getting much attention. 
The U.S. House approved the Senate version of the ADA Amendments Act of
2008 (S. 3406).  This action means it is off to the President for his signature.

The bill makes major changes to the Americans with Disabilities Act
(ADA).  The bill likely will be played down as not doing much
(except nice things), but it will have major implications.  The
purpose of the bill is to expand the coverage of the law and as a
result would require businesses (and others) to provide more reasonable
accommodations.

I’m not going to go through every major change, but here are a few highlights:

“Substantially Limits” is Redefined

In determining who is disabled, one “test” (the main test) within the
ADA is to determine if a physical or mental impairment “substantially
limits” a major life activity.  This term “substantially limits”
has been defined by the U.S. Supreme Court as meaning “prevents or
severely restricts.”  One of the purposes of the bill is to
overturn the Court’s opinion in Toyota v. Williams.

The Senate bill language expressly indicates that Congress disapproves
of this opinion.  “Substantially limits” should mean something
less than “prevents or severely restricts.”  Businesses that have
to comply with the ADA are going to have to figure out, after a long
line of precedent has already been established, what “substantially
limits” means.

Ameliorative Effects Must Be Ignored

The U.S. Supreme Court in a case called Sutton v. United Air Lines,
held that the ameliorative effects of mitigation measures should be
considered in determining whether someone has a disability.  In
other words, if an individual can correct an impairment, such as
through glasses or contact lenses, there is no disability.  Now,
these mitigation measures can’t be considered, with one
exception.  Glasses and contacts can still be considered. 
However, other measures that seemingly are comparable to glasses, such
as hearing aids, can’t be considered.


Transitory and Minor

The bill language could create a situation where an impairment that is
transitory (6 months or less) or minor, could now be covered. 
Here is a memo
from the Office of Management and Budget about the original House bill,
but the “transitory and minor’ analysis applies to the Senate bill that
was just passed.  Here is the key excerpt (which I agree with):

___________________

“The bill does exclude impairments that are both transitory and minor;
however, those that are one or the other would be covered.  As a
result, the bill could extend ADA protection to a short bout with the
flu or a mild seasonal
allergy. The Administration believes that the bill should exclude from
coverage impairments that are either transitory or minor.”

“Finally, the placement of the ‘transitory and minor’ exception
of the ‘regarded as’ prong within H.R. 3195 could lead to an unintended
and undesirable interpretation of the definition of disability.
Specifically, the bill does not explicitly apply the ‘transitory and
minor’ exception to the definition of disability in general.  This
means that some transitory and minor impairments could be covered as
actual disabilities.”

___________________

Within a few years, the unintended consequences of this law will have
been seriously felt.  BTW: The effective date of this new law is
January 1, 2009.