On Thursday, September 25, 2008, President George W. Bush signed into law, the "ADA Amendments Act of 2008" which clarifies and broadens the definition of disability, and expands the population eligible for protections under the Americans with Disabilities Act of 1990, as well as expressly rejecting certain holdings of the U.S. Supreme Court, which had eliminated or reduced protections under the ADA. The law becomes effective January 1, 2009.

The"ADA Amendments Act of 2008," (Amendments Act) attempts to reverse several holdings by the United States Supreme Court in the last 10 years, regarding what constitutes a disability, how the term “substantially limits” should be interpreted, and provide a list of per se “major life activities.” Some say this legislation restores the original intent of the Americans with Disabilities Act of 1990 (ADA) which has eroded over time, while others believe that employers will see a dramatic increase in requests for workplace accommodations, and a possible spike in litigation. Taken as a whole, these Amendments will undoubtedly make it easier for employees to come under the protection of the Act, but should not have significant impact on the day-to-day operations of employers who currently engage in the interactive process and provide reasonable accommodations to their employees. However, these changes are important to recognize as it will be an added obligation to consider in your workplace.

Below is a list of a few of the major changes to the Act that should be recognized and understood. While the changes to the ADA are significant, it is important to recognize that employees still are required to demonstrate that they are “qualified” under the ADA, meaning that, with or without reasonable accommodation, the individual must be able to perform the essential functions of the job.

  • The Findings and Purposes section introducing the Amendments Act specifically rejects the Supreme Court’s holding in Toyota Motor Manufacturing Kentucky Inc. v. Williams, 534 U.S. 184 (2002), where the Court held that the ADA is to be interpreted strictly to create a demanding standard for qualifying as having a disability under the ADA. Now, “[t]he definition of disability shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the Act.”
  • Currently, under the ADA, the term “disability” includes: (i) A physical or mental impairment that substantially limits at least one of the individual’s major life activities; (ii) a record of having such impairment; or (iii) being regarded as having such impairment. Until now, Plaintiffs arguing they meet the definition of a “disability” under the third prong, had the burden to show that even their perceived disability would have substantially limited a major life activity if genuinely affected by such impairment. With the new Amendments, Plaintiffs do not need to show that their condition was so severe as to amount to a belief that the condition substantially limited a major life activity. However, now the perceived impairment cannot be “transitory or minor,” which the Act defines as having an actual or expected duration of six months or less.
  • In the past, to amount to an actual disability under the first prong of the Act’s definition of disability, an impairment must substantially limit a major life activity. Under prior Supreme Court decisions, the term had been defined to mean an impairment that “prevents or severely restricts” an individual from performing major life activities. Toyota Motor Mfg., 534 U.S. at 198. The Amendments Act clarifies that this standard is too strict and any regulation on this issue will define the term with a less restrictive standard. Additionally, the Amendments Act states that an impairment that substantially limits one major life activity need not limit other major life activities; and that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
  • Another basis for the Amendments Act is the Supreme Court’s decision in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), where an employee was not considered “disabled” under the ADA if mitigating measures correct or improve the impairment. Again, the Amendments Act expressly rejects this holding and prohibits consideration of the ameliorative effects of mitigating measures. Such measures include, among other listed: medication, medical supplies, equipment, low-vision devices (which do not include ordinary eyeglasses or contact lenses), hearing aids and cochlear implants or other implantable hearing devices, mobility devices, oxygen therapy equipment and supplies.
  • The Amendments Act provides that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” This represents a slight, but substantial change. Until now, the Supreme Court has emphasized that courts should refrain from engaging in hypothetical inquiries as to the severity of impairments and instead must focus on the individual in his or her present state. By directing courts to consider whether an impairment would substantially limit a major life activity if it were active, the ADA Amendments Act allows courts to engage in this type of once-prohibited hypothetical inquiry, for this one instance.
  • Currently the list of major life activities that needs to be “substantially limited” in order to meet the definition of disability, include, but are not limited to, “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” According to the Findings and Purposes section, one of the purposes of the Act is to reject the notion that the term “major” in the definition of major life activities needs to be interpreted strictly. Therefore, the Act now includes a non-exhaustive list of major life activities designed to illustrate that perspective. Major life activities include, but are not limited to now include eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. It further expands the list to include “major life functions” such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive growth.