The Americans With Disabilities Act became law in 1990 and, since that time, has been the subject of masses of lawsuits and countless discussions among supervisors, human resources professionals, lawyers, academics, and courts. A central question is always the same:

Is Johanna “disabled,” does she have a record of a “disability,” or is she regarded as” disabled” under the ADA?

See 29 C.F.R. § 1630.2(g).

Whatever the answer before, it may be different starting January 1.

On January 1, 2009, the ADA Amendments Act of 2008 (“Amendments”) goes into effect. President George W. Bush signed the Amendments into law on September 25, 2008. See P. Law 110-325.

The Amendments expand the scope of the term disability.

Under the ADA, an individual with a disability has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is being regarded as having an impairment. See Amendments, § 4; 42 U.S.C. § 12102(2)).

The Amendments do not significantly change the definition of disability, but they intentionally and specifically broaden the elements contained in that definition in a number of critical ways. As a result, many more people will be considered “disabled” under the ADA.

a) Major life activity. The Amendments expand the scope of activities encompassed by the phrase “major life activity.” The regulations have long considered that someone who has an impairment that substantially limits his/her ability to care for himself or herself, perform manual tasks, walk, see, hear, speak, breathe, learn, and work is disabled under the ADA, because such activities are “major life activities.” See 29 C.F.R. § 1630.2(i). The Amendments add several other “major life activities” to this list, including eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, communicating, and operation of a major bodily function including but not limited to: functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. See Amendments, § 4. The Amendments reject court holdings that narrowly interpret this phrase.

b) Substantially limits. The Amendments also broaden the definition of the phrase “substantially limits” in connection with a major life activity so that more impairments are considered “disabilities” under the statute. While the Amendments themselves provide little guidance on the substance of this change, they do specifically reject court holdings, including the 2002 Supreme Court Toyota Motor holding, that are deemed to have “created an inappropriately high level of limitation necessary to obtain coverage under the ADA.” Amendments, § 2(b)(5). See id., §§ 2(a)(7), (8); Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002). The EEOC is expected to issue regulations re-defining the phrase. See Amendments, §§ 4(a)(4)(B), 6(a)(2); www.eeoc.gov/ada/amendments_notice.html.

c) Ameliorative effects. In one of the most stark changes to current analysis under the ADA, the Amendments mandate that the determination of whether an impairment “substantially limits a major life activity” must be made “without regard to the ameliorative effects of mitigating measures.” Amendments, § 4(a)(4)(E) (emphasis added).

In 1999, the Supreme Court found the EEOC’s guidance on this point to be contrary to the ADA, holding that “if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures … must be taken into account when judging whether that person is ‘substantially limited’ in a major life activity and thus ‘disabled’ under the Act.” See Sutton v. United Air Lines, Inc., 527 U.S. 471, 482-83 (1999).

The Amendments specifically reject the Court’s Sutton holding and its progeny. See Amendments, §§ 2(a)(4), 2(b)(2).

The Amendments also contain numerous examples of what cannot be considered in determining whether an individual has an impairment rising to the level of “disability:” “medication, medical supplies, equipment, or appliances, low-vision devices …, prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.” See Amendments, § 4(a)(4)(E) (emphasis added).

Exception: The Amendments make exception for ordinary eye glasses and contact lenses. The use of eye glasses and contact lenses to correct for visual acuity can be considered in determining whether an impairment substantially limits a major life activity. See Amendments, § 4(a)(4)(E)(ii).

d) Episodic / remission. The Amendments provide that an episodic impairment or one that is in remission is a disability “if it would substantially limit a major life activity when active.” See Amendments, § 4(a)(4)(D).

The Amendments change the “regarded as disabled” prong of the ADA and an employer’s duties to employees who fall in this category.

Under the Amendments, an employee does not have to show that his/her employer took an action prohibited by the ADA because the employer regarded his/her impairment as a “disability.” Rather, the Amendments provide that the “regarded as” prong is met when an individual establishes that he/she “has been subjected to an action prohibited under this Act 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.” Amendments, § 4(a)(3) (emphasis added). The “regarded as” prong does not apply to “transitory” and “minor” impairments (a “transitory impairment” being defined as one “with an actual or expected duration of 6 months or less”). Id.

Employers are not required, under the Amendments, to provide a reasonable accommodation to employees who are only “regarded as” having an impairment. Amendments, § 6(a)(1)(h).

The Amendments change the discrimination prohibition language.

Under the current ADA, employers are prohibited from discriminating against “a qualified individual with a disability because of the disability of such individual.” See 42 U.S.C. § 12112(a). The Amendments provide simply that employers are prohibited from discriminating against an individual “on the basis of disability.” Amendments, § 5.

Recommendations

· Review policies for compliance with the mandates of the Amendments.

· Inform supervisors and HR Managers of the expanded breadth of ADA coverage.

· Consider accommodation requests carefully. As always, engage in the interactive process when evaluating reasonable accommodation requests.

· Stay tuned for additional developments, including case law and EEOC guidance and regulations (the EEOC, Attorney General, and Department of Transportation all have the authority to issue regulations under the Amendments; regulations are expected to be extensively broader than those currently in place to comport with the Amendments’ specific mandate).

· Remember state laws, as they may mandate different (including broader) protections.