Congress last week approved the Americans With Disabilities (ADA) Amendments Act of 2008, marking the most significant changes in years to this federal anti-discrimination law.  With President Bush’s imminent signature, the ADA Amendments Act will take effect on January 1, 2009 and will significantly broaden the definition of “disability” to encompass more employees.  Indeed, Congress has commanded that the definition of disability be construed broadly “to the maximum extent permitted.”  Given this edict, employers should assume that more employees will be covered under the ADA.

Most individuals disabled within the meaning of the ADA have a “physical or mental impairment that substantially limits one or more major life activities.”  Currently, the ADA does not define “major life activity.”  The new amendments, however, set forth a nonexclusive list of major life activities, from seeing and hearing to walking and learning to concentrating and performing manual tasks.  Moreover, the amendments define major life activities as including “operation[s] of a major bodily function.”  For example, an individual whose physical impairment substantially limits his or her digestive, respiratory, or endocrine functions may be disabled under the ADA.

The ADA Amendments also loosen the narrow construction applied by courts and the Equal Employment Opportunity Commission to the term “substantially limits,” which, after the amendments, shall be interpreted broadly.  An impairment, physical or mental, need only substantially limit one major life activity in order for the individual to be disabled.  Additionally, “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”  And when determining whether an impairment substantially limits a major life activity, such determination shall be made “without regard to the ameliorative effects of mitigating measures,” such as medications, prosthetics, or hearing aids.  As such, when making personnel decisions, or engaging in the interactive process to ascertain a reasonable accommodation for the employee’s disability, the employer must ignore possible ameliorative effects of mitigating devices.  The purpose of these revisions, according to the drafters, is to override the United States Supreme Court’s decisions in Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999), Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), and related cases holding that mitigating measures must be considered in determining whether an individual is disabled.  Congress drafted an exception, however: the ameliorative effects of “ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.”

Finally, the amendments widen the scope of individuals disabled because they are “regarded as having such an impairment.”  Before the amendments, an individual was disabled only if he or she was perceived as having an impairment that substantially limited a major life activity.  The new amendments, however, require only that an employer perceive the individual as having a physical or mental impairment; an employer’s perception that the impairment substantially limits a major life activity is now irrelevant.  This definition does not apply to “transitory” impairments, or impairments “with an actual or expected duration of 6 months or less.”  Whether this exception will limit the breadth of the “regarded-as” disability is uncertain.

In summary, the ADA Amendments Act of 2008 is likely to increase the number of employees who are considered “disabled” under the ADA and, therefore, within the scope of its protection.  As such, it is predicted that there will be an increase in ADA lawsuits and an increase in the number of lawsuits that proceed beyond the threshold stage (i.e., whether the  plaintiff-employee is “disabled”) to the merits stage (i.e., whether the plaintiff-employee was discriminated against because of his/her disability).  Because the effective date of the amendments is quickly approaching, now is the time to understand and prepare for their impact.   This includes supervisor training to identify potential disabilities and engage in the interactive process to determine whether there is a reasonable accommodation for disabled individuals.