On September 25, 2008, President Bush signed Senate Bill 3406, the “ADA Amendments Act,” into law. The ADA Amendments Act (“Amendments”), which goes into effect January 1, 2009, presents new burdens for employers as it may increase the scope of who is “disabled” under the law and an employer’s obligations to those employees.

The stated purpose of the Amendments is to reject the standards enunciated in two U.S. Supreme Court cases, Sutton v. United Airlines, Inc., and Toyota Manufacturing Kentucky, Inc., v. Williams and to “carry out the ADA’s objectives of providing ‘a clear and comprehensive national mandate for the elimination of discrimination’ and ‘clear, strong, consistent, enforceable standards addressing discrimination’ by reinstating a broad scope of protection to be available under the ADA.”

Significant changes brought about by the Amendments include the following:

  1. The Amendments broaden the scope of who may be “disabled” by stating that an “impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” This means that employers must continue to engage in the interactive process with (and potentially accommodate) employees who suffer from, but may not currently be experiencing, an impairment related to their health condition. 
  1. The Amendments state that “An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.” In other words, impairment of a single major life activity, such as sleeping, may render an individual disabled, even if he or she can still accomplish a broad range of other major life activities like walking, talking, thinking, lifting and eating. 
  1. The Amendments directly prohibit the consideration of mitigating or ameliorative measures (such as medication, prosthesis, hearing aids, etc.) in determining whether such individual is disabled. The Amendments do allow, however, consideration of the ameliorative effects of “ordinary eyeglasses or contact lenses” intended to fully correct visual acuity or eliminate refractive error.
  1. The Amendments state that an individual is “regarded as disabled” if the individual “establishes that he or she has been subjected to an action prohibited under the 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.” This means that an employee may state a claim under the Americans With Disabilities Act (“ADA”) if he or she was regarded by the employer as having an impairment, even if the employer did not regard such impairment as a “disability” under the ADA and the impairment was not, in fact, a “disability” under the ADA. The only exception is that a person is not “regarded as disabled” for impairments that are transitory and minor in nature (i.e., impairments that last or are expected to last six months or less).

Where Do Employers Go From Here? 

Given the broad expansion of the definition of disability, anytime an applicant or employee has an impairment, the applicability of the ADA should be considered. An employer should not make any employment decision that arguably could have been impacted by or based on an individual’s impairment without first considering the applicability of these new standards. In addition, the Amendments make clear that employers will be required to engage in an interactive process to establish a reasonable accommodation for a far broader range of impairments than previously required.

Note, the ADA and the Amendments apply to employers with 15 or more employees. Employers in Oregon and Alaska whose disability laws currently track the ADA will experience the full impact of the changes introduced by the Amendments. Employers in Washington, who have eight employees or more, are already required to comply with state disability laws that contain an expanded definition of “disability,” as well as very broad accommodation requirements