On June 25, 2008, the House of Representatives passed H.R. 3195, a bill to reverse what it believes to be an impermissible judicial trend of narrowing the broad scope of protection intended by the Americans with Disabilities Act of 1990 (“ADA”). On September 11, 2008, the Senate followed suit by unanimously passing the ADA Amendment Act of 2008 (“the Act”), S. 3406, a bill that differs only slightly from H.R. 3195 by offering even greater protection to individuals with disabilities. If passed by the House, as expected, the bill would significantly broaden the definition of disability and lower the standard for determining whether an impairment substantially limits an individual’s major life activity. Although the White House has not issued a formal statement, the President is expected to quickly sign the bill. The Act’s effective date is projected to be January 1, 2009.

Disability Includes Perceived Impairments Not Limiting a Major Life Activity

Under the ADA, the term “disability” includes: (i) a physical or mental impairment that substantially limits at least one of an individual’s major life activities; (ii) a record of having such impairment; or (iii) being regarded as having such impairment. The Act clarifies that an individual could meet the third prong’s “being regarded as” definition regardless of whether the impairment is perceived to limit a major life activity. The perceived impairment, however, cannot be “transitory and minor,” which the Act defines as having an actual or expected duration of six months or less.

The Act Requires a Broad Interpretation of “Disability”

In Toyota Motor Manufacturing Kentucky Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court held that the ADA is to be interpreted strictly to create a demanding standard for qualifying as having a disability under the ADA. The Act expressly rejects this strict standard and provides that: (i) the definition of “disability” should be construed broadly to the maximum extent permitted by the Act; (ii) that the term “substantially limits” does not require extensive analysis, must be interpreted broadly consistent with the findings made in the Act and does not mean “significantly restricted” as described by Equal Employment Opportunity Commission regulations or “materially restricts” as originally proposed by H.R. 3195; (iii) that an impairment that substantially limits one major life activity need not limit other major life activities; and (iv) that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

The Act Prohibits Consideration of Mitigating Measures

According to the Supreme Court’s decision in Sutton v. United Airlines Inc., 527 U.S. 471 (1999), an employee is not “disabled” under the ADA if mitigating measures correct or improve the impairment. The Act expressly rejects this holding and prohibits consideration of the ameliorative effects of mitigating measures. Such measures include: (i) medication, medical supplies, equipment, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, oxygen therapy equipment and supplies; (ii) the use of assistive technology; (iii) reasonable accommodations or auxiliary aids and services; or (iv) learned behavioral or adaptive neurological modifications.

The Act Expands “Major Life Activities” to Include “Major Bodily Functions”

The ADA regulations provide that the term “major life activities” as used in the ADA’s definition of “disability” includes functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. The Act expands the list to include “major bodily functions” such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

The Impact of the Act

By broadening the ADA’s definition of disability and lowering the standards as discussed above, the Act, if passed by the House, will undoubtedly make it easier for individuals to garner protections under the ADA. An individual would still be required to demonstrate that he or she is “qualified” under the ADA, meaning that, with or without reasonable accommodation, the individual can perform the essential functions of the job. Nevertheless, employers can expect to see a dramatic increase in employees’ requests for workplace accommodations and a consequential spike in litigation.

We will continue to monitor the status of the Act and provide future updates. Meanwhile, if you have any questions, please do not hesitate to contact an attorney in our Labor & Employment Group.