Who is Affected?

Employers who have been covered by the ADA before (those who have 15 or more employees) will be covered by the amendments.

Has the Definition of Disability Changed?

The ADAAA makes clear that the ADA is intended to provide broad protection to anyone who faces discrimination on the basis of disability by rejecting a strict interpretation of the definition of disability. Employers must now adopt a broad standard to determine if someone is “disabled,” which is found in the language of the amendments, and courts are to provide coverage to individuals “to the maximum extent permitted.”

Prior to these amendments, courts frequently dismissed cases on the grounds that the individual was not “disabled.” Employers should now assume that more employees are going to be covered by the ADA and make employment decisions with that assumption in mind.

How is “Major Life Activity” Defined?

The ADA was silent on what constituted a major life activity, leaving the issue for the courts to decide. In interpreting the ADA, the Supreme Court issued a number of decisions that narrowed the scope of the ADA’s protection. In response to these decisions, and to clarify the Legislature’s intent, the ADAAA increases the scope of “major life activities” to include a long list of activities – including eating, working, thinking and concentrating – that constitute major life activities. In addition, the ADAAA adds a section with specific examples of “major bodily functions” – functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions – which are also considered major life activities. For employers, this is another indication that a broad definition of “disability” must be adopted going forward.

Should Mitigating Measures Be Considered?

Significantly, the ADAAA overrules Supreme Court decisions holding that “mitigating measures” must be taken into account when determining whether an individual has a disability. Instead, employers and courts now must ignore those mitigating measures (other than vision-correcting eyeglasses and contact lenses) when evaluating whether an individual has a covered disability. Thus, with this change, employees with disabilities will be protected by the ADA even if their conditions are mitigated with medication or assistive technology.

How was the “Regarded As” Provision Treated?

The ADAAA covers individuals who experience discrimination based on a perception of impairment, regardless of whether the individual actually has a disability. The Act, however, clarifies that employers do not need to make accommodations for individuals who are considered disabled only because they are “regarded as” disabled. In addition, the ADAAA excludes minor conditions and transitory conditions lasting six months or less from protection under the “regarded as” provision.

How is Coverage for Remission/Episodic Conditions Treated?

Under the ADAAA, a condition that is in remission or is episodic is covered as a disability if the condition substantially would limit a major life activity if it were active.

How the ADAAA Will Likely Effect Employers Going Forward

The ADAAA expands the number of employees protected under the ADA. Therefore, employers can expect an increase in the volume of reasonable accommodation requests and an increase in disability-related claims and lawsuits. Employers can also expect that ADA cases are likely to move from “threshold” issues (whether an employee has a disability) to “liability” issues (whether the employee actually was discriminated against). Thus, employers should expect to defend more ADA cases like other discrimination claims: by showing that it has a legitimate, non-discriminatory reason for its decision.

Employers should familiarize themselves with the ADAAA and seek guidance on how the changes could impact their particular policies and practices so that they can address accommodation requests appropriately and in accordance with the Act. In addition, due to the greater number of employees protected under the ADA, employers should consider reviewing the information included in the Equal Employment Opportunity Commission’s (EEOC) September 3, 2008 publication, which constitutes a “comprehensive question-and-answer guide addressing how the Americans with Disabilities Act (ADA) applies to a wide variety of performance and conduct issues.”