The ADA Amendments Act of 2008: Changes to the Americans with Disabilities Act and Their Impact on Employers
By David S. Binder

The Americans with Disabilities Act of 1990 (ADA) is a civil rights law that prohibits, under certain circumstances, discrimination based on disability. It was signed into law on July 26, 1990, by President George H. W. Bush. On September 25, 2008, President George W. Bush signed into law The ADA Amendments Act of 2008 (ADAAA). It is intended to give broader protections for disabled employees by expanding the definition of disability and undoing court rulings that restricted the application of the ADA. The ADAAA took effect January 1, 2009.

The ADA states that a covered entity shall not discriminate against a qualified individual with a disability. The prohibition against discrimination applies to all terms, conditions, and privileges of employment including, without limitation, job application procedures, hiring, advancement and discharge. Just like other civil rights laws that prohibit decisions based on protected characteristics like race or sex, Congress wanted the ADA to stop employers from making adverse decisions based on disability. Unfortunately, after the passage of the ADA, several court decisions narrowed the definition of disability so much that people with serious conditions were unable to meet the statutory definition to invoke the protections of the statute.

In a series of rulings after the ADA took effect, courts placed a narrow construction on who is protected under the ADA. In one decision, the U.S. Supreme Court held that mitigating measures, such as wearing a hearing aid or taking medication, should be taken into consideration when determining if a person has a qualifying disability. In such a case, a worker that suffered from a disabling condition could not invoke the protection of the ADA when the worker was discriminated against because of a disability. In other words, an employer could fire or refuse to hire a fully qualified worker on the basis of a physical or mental impairment if the worker is not “disabled enough” to qualify for protection.

The ADAAA reverses these court decisions and the limiting trend that evolved with the following changes:

Broad interpretation
To undo the narrowing trend and place greater focus on an employer’s actions, the ADAAA affirms Congress’ intent that the definition of disability be construed in favor of broad coverage. In addition, the ADAAA states that “proof of disability should no longer require extensive evidence.” Rather, the primary focus “should be whether entities covered under the ADA have complied with their obligations.”

Major life activities
Under the ADA, “disability” is defined as a physical or mental impairment that substantially limits one or more major life activities; was a record of such an impairment, or, being regarded as having such an impairment. While the ADAAA maintains the definition of a disability, it expands the definition of the term major life activities. Under the ADAAA, major life activities is broadly defined and includes “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” In addition, the legislation states that a major life activity includes the operation of a major bodily function, including “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The ADAAA notes that the list of examples is non-exhaustive.

Substantially limits
Following the passage of the ADA, the Equal Employment Opportunity Commission (EEOC) issued a regulation that narrowly defined the phrase substantially limits to mean “significantly restricted.” In addition, in Toyota Motor Manufacturing Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the U.S. Supreme Court took a limiting view of the ADA and held that an impairment must “prevent or severely restrict” an individual in tasks that are of “central importance to most people’s daily lives,” rather than simply restricting the individual’s ability to perform tasks in a particular job. The Court further held that the term substantially needed to be interpreted strictly.

The ADAAA rejects these interpretations calling them “an inappropriately high level of limitation” and mandates an interpretation of the term substantially limits in a manner consistent with the findings and purposes of the ADAAA (i.e., to reinstate a broad scope of protection under the ADA). The ADAAA also rejects the EEOC’s definition of substantially limits and expresses the expectation that the EEOC will revise that regulation.

The legislation also clarifies other aspects of the ADA. For example, the ADAAA states: Only one major life activity needs to be limited. An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Mitigating measures
Following the passage of the ADA, several U.S. Supreme Court rulings held that corrective and mitigating measures must be considered in determining whether an impairment substantially limits a major life activity. See Sutton v. United Airlines 527 U.S. 471 (1999). In Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), the Court applied the same analysis to medication used to treat hypertension, and concluded that a terminated employee was not protected under the ADA because medication alleviated some of his symptoms. Lastly, in Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999), the Supreme Court determined that mitigating measures included not only artificial aids, but also subconscious measures a person may use to compensate for an impairment. In that case, the employee was blind in one eye, and the employee’s brain subconsciously learned to compensate for the monocular vision. That compensation was found to be a mitigating measure, and using the Sutton analysis, the Court found that the employee did not have a disability under the ADA.

The ADAAA reverses this line of cases and provides that the determination of whether an impairment substantially limits a major life activity must be made without considering the ameliorative effects of mitigating measures.

Being regarded as having an impairment
Under the ADA, a person can claim to be disabled if the employer regarded the person as having an impairment. To establish a claim, a person would have to show that his or her employer regarded him or her as having an impairment that substantially limited a major life activity. Under the ADAAA, a person can meet the requirement of being regarded as disabled if he or she can prove discrimination because of an actual or perceived physical or mental impairment, regardless of whether the impairment actually limits or is perceived to limit a major life activity. The ADAAA further clarifies that employees regarded as being disabled (but not actually disabled) need to be accommodated.

What you can do to prepare for the changes
Review policies related to the ADA, discrimination, and accommodation procedures to make sure that they are consistent with the new changes.

Make sure job descriptions are up to date and accurately identify essential job functions. The ADA requires that employers use an interactive process to determine whether there is a reasonable accommodation that will allow a disabled individual to perform a job. With a broader interpretation of “disability,” make sure procedures are in place for responding to requests for reasonable accommodations and documenting the interactive process. Train supervisors and managers about the changes and how to handle claims of discrimination and requests for accommodation.

If an employee was previously denied a reasonable accommodation request because it was determined that he or she did not satisfy the disability requirement of the ADA, reevaluate whether the ADAAA changes the analysis.

David S. Binder is a Senior Associate in the Sherman Oaks office of Tharpe & Howell. Mr. Binder’s experience includes working in the firm’s Labor and Employment Practices Group representing management in all areas of employment law. For more information about this article Mr. Binder may be contacted at (818) 205-9955 or This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

New Executive Orders Impose Significant Labor Obligations on Government Contractors
By Paul T. Trimmer 

Since taking office, President Obama has signed four Executive Orders that will affect the labor obligations of government contractors. Executive Orders 13494, 13495, and 13496 were issued on January 30, 2009, and are available at http://edocket.access.gpo.gov/2009/pdf/E9-2483.pdf. Executive Order 13502, available at http://edocket.access.gpo.gov/2009/pdf/E9-3113.pdf, was issued a few days later on February 6, 2009. The Orders have a significant impact on a wide variety of employment issues, including worksite postings, how contractors bill and/or invoice work, how employers determine which employees to hire when replacing existing contractors on a federal project, and what agreements, if any, must be made with labor unions before beginning a construction job. Violation of the Orders can carry substantial penalties. Accordingly, employers that do business with the federal government should review their personnel and labor policies to ensure compliance.

Executive Order 13494: Prohibition on claiming organization costs as expenses
Executive Order 13494 limits the types of expenses for which federal contractors may claim reimbursement. According to the Order, the limitations ensure that the federal government remains neutral in potential labor-management disputes. Thus, while the Order allows reimbursement for costs “incurred in maintaining satisfactory relations between the contractor and its employees,” and also specifically provides that it should not be applied in a manner that would “interfere with the ability of contractors to engage in advocacy through activities for which they do not claim reimbursement,” it prohibits federal contractors from claiming reimbursement of any costs incurred to persuade or dissuade employees from exercising their right to organize or engage in collective bargaining, or concerning the manner in which such rights are exercised. Determining where certain activities fall along this spectrum can be difficult, and the penalty for errors can be severe. Covered employers should review their labor relations strategies and billing practices in order to ensure compliance.

Executive Order 13495: Nondisplacement of qualified workers
Executive Order 13495 mandates that federal service contracts subject to the Service Contract Act of 1965, 41 U.S.C. § 351 et seq., must include a clause obligating a successor federal contractor or subcontractor to offer a right of first refusal to employees whose employment was terminated as a result of the award of the successor contract. In other words, a successor contractor may not simply replace an existing workforce with its own employees. It must give the incumbent organization’s employees the chance to retain their jobs and continue performing the contracted work.

There are a few exceptions. For example, the successor may choose to employ fewer employees than the predecessor contractor, as well as retain certain employees who, unless allowed to work on the new contract, would be laid off. Nonetheless, the Order will substantially limit the freedom of successor contractors to manage their workforce, and if the incumbent contractor’s workforce was represented by a labor union for purposes of collective bargaining, under the National Labor Relations Board’s successorship doctrine, the successor contractor may be obligated to recognize and bargain with the existing union. Employers bidding on sevice contracts that are subject to the Service Contract Act should consider the potential costs of satisfying this Order’s requirements when evaluating and preparing their proposal.

Executive Order 13496: Employer obligated to notify employees of right to organize Executive Order 13496 requires federal contractors to post a notice summarizing certain rights employees have under the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151–169, in places where employees engage in activities related to the performance of the federal contract. The Order itself, however, does not prescribe the specific contents of the notice. Instead, it instructs the Department of Labor to issue regulations to that effect.

The DOL published its proposed regulation and notice on August 3, 2009. See proposed 29 C.F.R. § 471, available at http://edocket.access.gpo.gov/2009/pdf/E9-17577.pdf. The proposed notice outlines certain rights regarding concerted activity and collective bargaining that employees have under the NLRA, provides examples of employer conduct that is illegal under the NLRA, and provides contact information in the event that an employee suspects that the law has been violated. It also mandates that government contracts subject to the Order include the text of the required notice, enforcement procedures, and an explanation of the sanctions, penalties, and remedies that may be imposed if the contractor or subcontractor fails to comply with its obligations.

The DOL’s proposed regulation has not yet been adopted, and while it does provide the form and content of the required notice, it does not give employers concrete guidance on a number of issues. For example, the Order reversed a Bush Administration Executive Order that required government contractors to notify employees of their rights not to join unions or contribute agency fees for union expenditures unrelated to representation. See Communication Workers of America v. Beck, 487 U.S. 735 (1988). While the proposed notice provides a comprehensive description of employees’ rights to organize, it does not include information about employees’ rights to refrain from joining labor organizations, and it remains unclear whether employers would be permitted to advise employees of such rights in the same notice. Due to this and other potential issues, employers subject to the Order’s notice requirement should assess their overall strategy for communicating with their workers about labor matters in order to ensure that their message receives equal consideration.

Executive Order 13502: Project labor agreements
Ordinarily, an employer may enter into a collective bargaining agreement only with a union that represents a majority of the employer’s employees in an appropriate bargaining unit. Because construction projects are temporary in nature and often lack a permanent workforce, federal labor law permits employers and employees working in the construction industry to enter into pre-hire contracts, like project labor agreements, under Section 8(f) of the NLRA. 29 U.S.C. § 158(f). Such agreements allow the owner or general contractor of a construction project to bargain with a union or unions and set the terms and conditions of employment for all employees on the worksite, including wage rates, benefits, and dispute resolution procedures, before the actual work force for the project is hired. Contractors and subcontractors that wish to do work on the site must then abide by the project labor agreement’s terms.

Executive Order 13502 permits executive agencies to require the use of a project labor agreement by a contractor on projects valued at $25 million or more. While project labor agreements are relatively common, particularly on large construction projects, they can be controversial. Some believe the agreements promote labor stability and assist employers in predicting labor costs. This appears to be, in part, the Order’s intention, because it requires project labor agreements on federal projects to include guarantees against strikes, lockouts, and other work stoppages, as well as establish mutually binding procedures for labor dispute resolution. Others claim, however, that the agreements drive up labor costs and limit a company’s right to manage its workforce. Such commentators assert that construction contractors that are not otherwise party to a collective bargaining relationship can find project labor agreements particularly frustrating because the agreements restrict employers’ ability to hire and discharge employees or make other unilateral changes to the terms and conditions of employment for their workforce. Regardless of perspective, however, it is clear that project labor agreements can impact a contractor’s decision to bid on a federal construction project, and therefore the matter should be considered carefully during the bidding process.

The penalties for violating any of the above-referenced Orders can be severe. An employer’s federal contracts may be suspended, cancelled, and even terminated. In some cases, a contractor found to violate an Order may even be debarred—which precludes accepting or fulfilling any other government contracts—until the contractor complies with the provisions of the relevant Order. Accordingly, employers that do business with the government should take immediate action to determine and assess their obligations under the Orders. The Orders, however, are not applicable to all contractors. For example, government contracts below the current simplified acquisition threshold of $100,000 as defined in the Office of Federal Procurement Policy Act, 41 U.S.C. § 403, are not covered. Therefore, employers should first carefully evaluate their existing contractual relationships to determine if they are actually subject to the Orders’ requirements and whether they qualify for an exception.

If a business is covered, it should take the steps necessary to comply with each applicable Order. The discussion above is necessarily brief, so each applicable Order should be reviewed carefully. In addition, businesses that are not party to a government contract, but are considering entering into such an agreement, should ensure that the effects of these Orders are considered during the bidding and negotiation process.

Paul T. Trimmer is an associate in the Las Vegas office of Jackson Lewis LLP, a national law firm that exclusively represents management in employment law and labor relations matters. Additional information about the firm, as well as Mr. Trimmer, is available on-line at www.jacksonlewis.com. The author thanks Tony Silva for his contributions to this article.