Driving Under the ADA

The Tenth Circuit Court of Appeals recently held that merely because a person cannot drive does not mean that the person meets the legal definition of "disabled" under the Americans with Disabilities Act: Kellogg v. Energy Safety Services, Inc. 544 F.3d 1121 (10th Cir. 2008). Although the facts of the case are most compelling, it is anticipated that Kellogg will not be the law on this issue for long, as the ADA Amendments Act went into effect January 1, 2009; and, a much broader definition of "disability" is set out in the ADA Amendments Act.

Kellogg, who had epilepsy, sued her employer, alleging disability discrimination. She was a safety technician who, occasionally, drove to oil fields to perform her work. She asserted that, because she was not allowed to drive, due to the risk of seizure, she was substantially limited in the major life activity of "driving." The Court noted that, although driving is an "important daily activity", it is a "means to an end". Consequently, although Kellogg prevailed on her claim before a jury at the District Court level, the Tenth Circuit reversed and remanded the case for a new trial on whether Kellogg was limited in a major life activity.

However, the Kellogg decision will, most likely, not be law for employment claims that arise under the recently passed ADA Amendments Act (possibly the most sweeping change to the face of employment law in over 10 years). The ADA Amendments ACT (which was signed on September 25, 2008) went into effect on January 1, 2009, and makes important changes to the definition of the term "disability". The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. On the other hand, it changes the way that these statutory terms should be interpreted. Moreover, the new law directs EEOC to revise that portion of its regulations defining the term "substantially limits"; and, to date, those new regulations have not been finalized.