On Sept. 25, 2008, President George W. Bush signed the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”). The Act becomes effective on Jan. 1, 2009.

The ADAAA preserves the basic framework of the Americans with Disabilities Act of 1990 (“ADA”) and seeks to further the objectives of the ADA in eliminating the discrimination of persons with disabilities. The ADAAA expands the scope of covered persons and clarifies existing terminology used in the ADA. In accomplishing this, the Act effectively rejects a line of U.S. Supreme Court rulings that have narrowed the definition of disability under the ADA.

Definition of Disability

The ADA defines “disability” as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such impairment; or (3) being regarded as having such impairment.

Although the ADAAA does not define the term “substantially limits,” it mandates that courts and agencies interpret the term broadly. Specifically, the ADAAA provides that “[t]he definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted under the Act.”

The ADAAA expands the definition of “major life activities” to include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Major life activities also is expanded to include “major bodily functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Further, under the ADAAA an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Although the list of major life activities under the ADAAA is extensive, it is only illustrative and is not exhaustive.

No Consideration of Mitigating Measures

The ADAAA provides that the determination of whether an individual has a disability that substantially limits a major life activity is to be made without considering mitigating measures. Thus, a person whose condition is controlled by medication, medical supplies, prosthetics, assistive technology, and other medical equipment cannot be excluded from the definition of disabled persons. The ADAAA, however, provides an exception for the consideration of mitigating measures where ordinary eyeglasses or contact lenses are used to correct poor vision.

“Regarded As” Having a Disability

As noted above, the ADA protects individuals who are “regarded as” having such an impairment. Under the ADAAA, a person meets this requirement if the individual establishes that he or she has been subjected to a prohibited action based on an actual or perceived physical or mental impairment, regardless of whether the impairment actually limits a major life activity.

Individuals who file a claim under the “regarded as” prong are not protected under the ADAAA where the impairment is transitory or minor. For purposes of the ADAAA, an impairment is transitory when its actual or expected duration is of six months or less. Similarly, the ADAAA expressly provides that employers need not provide a reasonable accommodation to those “regarded as” having an impairment.

ADAAA’s Potential Impact on Employers

In sum, the ADAAA expands the ADA by (1) broadening the scope of disabled persons covered under the Act, and (2) requiring employers to consider the disability status of employees without the consideration of mitigating factors. Employers should familiarize themselves with the amendments in advance of the 2009 effective date. Employers should review their disability policies and practices, and anticipate a larger pool of employees who may be considered disabled under the ADAAA and potentially entitled to receive reasonable accommodations. Although the ADAAA expands the scope of covered individuals, it does not limit all traditional rights and defenses available to employers. Employers are encouraged to keep thorough records of all disability claims, accommodation requests, and decisions (including the rationale behind such decisions) made.