Thursday, October 13, 2016

Revisions to the Americans With Disabilities Act (ADA)

Revised ADA regulations should ensure that more students with disabilities qualify for a 504 even if they did not before.  Effective October 11, 2016, the Americans with Disabilities Act (ADA) Amendments Act of 2008 (ADA Amendments Act or the Act), which took effect on January 1, 2009 was amended broadening coverage to more individuals with disabilities.  New sections were added to Title II and Title III of the ADA regulations to set forth the proper meaning and interpretation of the definition of “disability” and to make other related changes required by the ADA Amendments Act in other sections of the regulations.
The revised regulations expand the definition of “major life activities” by providing a non-exhaustive list of major life activities that specifically includes the operation of major bodily functions. The revisions also add rules of construction to be applied when determining whether an impairment substantially limits a major life activity. These rules of construction state the following:
—That the term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA;
—that an impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population;
—that the primary issue in a case brought under the ADA should be whether an entity covered under the ADA has complied with its obligations and whether discrimination has occurred, not the extent to which the individual's impairment substantially limits a major life activity;
—that in making the individualized assessment required by the ADA, the term “substantially limits” shall be interpreted and applied to require a degree of functional limitation that is lower than the standard for “substantially limits” applied prior to the ADA Amendments Act;
—that the comparison of an individual's performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence;
—that the ameliorative effects of mitigating measures other than “ordinary eyeglasses or contact lenses” shall not be considered in assessing whether an individual has a “disability”;
—that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; 
—that an impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment. The final rule also states that an individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that 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. It also provides that individuals covered only under the “regarded as” prong are not entitled to reasonable modifications.
The ADA Amendments Act's revisions to the ADA apply to title I (employment), title II (State and local governments), and title III (public accommodations) of the ADA. 
The changes include:
The addition of Attention-Deficit/Hyperactivity Disorder (ADHD) as an example of a physical or mental impairment;
The addition of “writing” as an example of a major life activity;
The “regarded as" prong is clarified; the burden is on a covered entity to establish that, objectively, an impairment is “transitory and minor” and therefore not covered by the ADA.