Effective January 1, 2009, the reach of the Americans with Disabilities Act (ADA) will be extended. Following near unanimous passage by the House and Senate, President Bush signed the ADA Amendments Act of 2008 (ADAAA) into law on September 25, 2008.

The ADAAA rejects the strict definition of “disability” that was developed in several U.S. Supreme Court cases. Congress proclaimed that such decisions “have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect.” This should cause a major change in the landscape of disability discrimination cases, where a majority of cases are currently dismissed at the summary judgment stage because plaintiffs are unable to prove they have a “disability.”

Meaning of “Substantially Limits” and “Major Life Activity” Expanded

Under both the original ADA and the new ADAAA, a plaintiff must show they have a physical or mental impairment that substantially limits a major life activity to meet the requirements of having an actual disability. However, the ADAAA gives new meaning to “substantially limits” and “major life activity.”

In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Supreme Court declared that employees must prove they are “prevented or severely restricted in an activity that is of central importance in most people’s daily lives” to establish they are “substantially limited” in a “major life activity.” Rejecting this narrow interpretation, Congress declared that the focus should be on “whether entities covered under the ADA have complied with their obligations,” and “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” The ADAAA directs the EEOC to revise its current regulations that defines the term “substantially limits” as “significantly restricted” to be consistent with the new law.

For the first time, the ADAAA directly places in the ADA itself a non-exhaustive list of major life activities. This list includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The ADAAA also expands the definition of major life activities to include the operation of a major bodily function. The list of major bodily functions includes functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

Ameliorative Effects of Mitigating Measures No Longer Taken into Consideration

The ADAAA also expands the number of employees covered by the ADA by requiring courts to evaluate an employee’s condition without regard to certain mitigating measures being used to treat the condition. In Sutton v. United Airlines, 527 U.S. 471 (1999), the Supreme Court held that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures.

Rejecting Sutton and its progeny, the ADAAA contains an expansive list of mitigating measures that should not be taken into account. This list includes medication, medical supplies, equipment, appliances, lowvision devices, prosthetics, implantable hearing devices, mobility devices and learned behavioral or adaptive neurological modifications. Thus, employees with conditions like epilepsy, diabetes or cancer, who were previously denied protection because their conditions could be managed through medications and other procedures, are now protected.

However, the ADAAA also specifically provides that the “ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.” While the ameliorative effects of wearing eyeglasses or contact lenses can be taken into account in determining whether an individual has a disability, individuals with poor uncorrected vision cannot be screened out by employers unless there is a “business necessity.”

“Regarded As” Provision Broadened

Under both the original ADA and the new ADAAA, individuals who are “regarded as” having a disability are included in the definition of disability. The ADAAA, however, broadens the definition of “regarded as.” Under current court precedent, to fall under the “regarded as” prong of the disability definition, employees must show that they were perceived as having an impairment that substantially limits a major life activity.

Under the new law, an employee can show they fall under the “regarded as” prong by simply showing that they were subjected to an action prohibited under the ADA “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.” There is a limitation, however, that excludes impairments that are transitory and minor with an actual or expected duration of six months or less.

Impairments in Remission or Episodic Now Specifically Covered

The ADAAA now clarifies that, if an employee has an impairment that substantially limits a major life activity when active, he or she is still covered by the ADA, even though the condition is in remission or the condition is episodic.

What This Means for Employers

Under the ADAAA, more employees will be covered by the ADA and, consequently, employers will need to provide reasonable accommodations on many more occasions. In addition, employers should be prepared for increased litigation as the margins of the new law are tested.

In response to the ADAAA, employers should review and revise company policies and handbooks to ensure that the new provisions of the ADAAA are incorporated. Employers should also provide training to human resources personnel to ensure they are complying with the new law in making employment decisions affecting individuals who may be covered under the broader definition of disability.