The Americans with Disabilities Act Amendments Act (“ADAAA” or the “Act”) was signed into law by President George W. Bush on September 25, 2008 and became effective January 1, 2009. The ADAAA rejects a number of United States Supreme Court cases in favor of broadening the scope of protections afforded to individuals with disabilities. The Act specifically directs the EEOC to issue revised regulations to conform to the changes and make it easier for employees to establish the existence of a substantially limiting physical or mental impairment.

Defining Disability

The ADAAA leaves the definition of “disability” as defined by the ADA largely intact. A disability is (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (2) a record of such an impairment or (3) being regarded as having such an impairment. However, the ADAAA expressly states that the definition of disability “shall be construed in favor of broad coverage of individuals” and “the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”

Moreover, the ADAAA explicitly rejects the Supreme Court’s ruling in Toyota v. Williams, 534 U.S. 184 (2002), that in order to be substantially limited an individual must have an impairment that “prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” The ADAAA rejects the Supreme Court’s interpretation of “substantially limits” as “prevents or severely restricts” as creating too demanding a standard for qualifying as disabled. The Act instead provides that an impairment that “substantially limits one major life activity need not limit other major life activities in order to be considered a disability.”

Expanding the Definition of Major Life Activities

The ADAAA provides two non-exhaustive lists of activities that are always to be considered major life activities. The first 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 second list consists of major bodily functions, including functions of the immune system, normal cell growth, and bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The ADAAA expands the definition of disability by clarifying and expanding the list of major life activities and creating an additional category for major bodily functions.

Mitigating Measures

In Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), the Supreme Court held that under the ADA courts must consider the ameliorative effects of mitigating measures in determining whether an impairment limits a major life activity. The Act overrules Sutton and provides that mitigating measures other than eyeglasses and contact lenses may not be considered in assessing whether an impairment substantially limits a major life activity.

Individuals “Regarded As” Having a Disability

Under the ADAAA, an individual “regarded as” having a disability is protected if he or she can establish that he or she has been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment, regardless of whether or not that impairment limits or is perceived to limit a major life activity. Thus, individuals no longer need to show that the perceived impairment limits a major life activity. However, despite the broadened coverage provided by the Act, there are two important caveats. First, individuals regarded as having minor or transitory impairments (impairments lasting less than 6 months) are not protected under the ADAAA. Second, reasonable accommodations do not need to be provided to individuals “regarded as” disabled.

What Employers Should Keep in Mind

Employers will likely see a sharp increase in disability litigation, with the focus shifting from whether an employee is disabled to an analysis of reasonable accommodations available that would permit the employee to perform his or her essential job functions. Employers should remember that they still can require employees to provide documentation from a doctor in support of a claimed disability or request for accommodation. Managers and human resources personnel should be educated regarding employers’ expanded obligations — and potential liability — under the new law.