Vol. 32, No. 3, 4. Employment Law: From Bush to Obama.

• Author: By Brad Cave

Wyoming Bar Journal

2009.

Vol. 32, No. 3, 4.

Employment Law: From Bush to Obama

Wyoming LawyerIssue: June, 2009Employment Law: From Bush to ObamaBy Brad Cave The last six months have seen substantial shifts in the landscape of federal employment law. In the waning days of his administration, President Bush signed a broad expansion of the Americans With Disabilities Act and new limits on the use of genetic information, and adopted new regulations under the Family and Medical Leave Act. Now, President Barak Obama appears intent on delivering on his campaign promises of "hope and change" in many areas of employment law. Virtually all of the changes promoted by President Obama, from the Ledbetter Fair Pay Act to the Employee Free Choice Act, will expand the rights of employees while increasing the obligations and duties of employers.

ADA Amendments Act (ADAAA)

The ADAAA (fn1) became effective January 1, 2009. Congress passed the Act for the express purpose of overturning two Supreme Court opinions (fn2) which interpreted the definition of disability in ways that substantially limited the scope of protection under the ADA. The definition states that a physical or mental impairment must "substantially limit" a major life activity before the impairment meets the definition of disability. The Court had ruled that "substantially limits" meant that the impairment must prevent or severely restrict the employee's ability to perform the major life activity, as compared to the ability of a person in the general population, and the determination must consider how the impairment affects the person taking into account mitigating measures such as medications, learned compensatory behaviors, or other types of assistive devices.

Congress adopted new rules of construction for the definition, directing that the definition of disability is to be construed in favor of broad coverage.(fn3) For example, mitigating measures are not to be considered; the impairment must be assessed as it would affect the individual without any mitigating measure, even if the employee uses those measures. Also, the limitations of impairments that are episodic or in remission must be considered as if the impairments were fully active, even if the employee is not experiencing those impacts. The Act also expanded the list of major life activities to include all physiological functions, rather than just external human activities. Ultimately, Congress directed that employers should not be particularly concerned...